House to Consider HR 7617 – Second FY 2021 Minibus

Tomorrow the House is scheduled to take up HR 7617, the second (and final) FY 2021 minibus. This legislation includes language from the following bills:  

• HR 7617 (DOD – Division A),

• HR 7667 (CJS – Division B),

• HR 7613 (EWR – Division C),

• HR 7668 (Financial Services – Division D),

• HR 7614 (LHH – Division E), and

• HR 7616 (THUD – Division F)

HR 7667, the FY 2021 DHS spending bill, was originally supposed to be included in this minibus, but it was removed in an amendment agreed to last night in the House Rules Committee. The Committee also approved 340 amendments to be submitted from the floor during the debate on this bill.

I will be watching for the following amendments to be considered on the floor:

83. Young (AK), Gabbard (HI), Gallego (AZ): Decreases the Defense Wide Operations and Maintenance account by $10 million and increases the Air Force Operations and Maintenance account by the same amount, for the ISR Operations Office to support the Cyber Operations for Base Resilient Architecture Pilot Program.

163. Gosar (AZ): Transfers $5 million from the Department of Energy's Departmental Administration account to the Cybersecurity, Energy Security, and Emergency Response account.

221. Bera (CA): Decreases and increases funds by $1 million in the CDC Public Health Preparedness and Response account to urge CDC to integrate early warning surveillance data, such as network-connected devices like smart thermometers and pulse oximeters or symptom surveys, into its COVID-19 syndromic surveillance to help identify potential hotspots even before individuals present to a health care facility.

338. Stauber (MN), Emmer (MN), Lipinski (IL): Increases and decreases the PHMSA authorization by $1,000,000 to highlight the need to conduct a study of corrosion control techniques for leak prevention of regulated above ground storage tanks. (10 minutes)

Commentary

The removal of the DHS spending provisions means that for the second year in a row, the Democratic leadership in the House could not work out a deal with their members for language on immigration issues that would allow for both moderates and progressives within the party to vote for the bill. Since there is little room for Republican support for the language in HR 7667, the Democrats would have to pass the legislation with only Democratic votes.

The revised minibus will almost certainly pass this week. It will not be taken up in the Senate and the Senate is unlikely to get any spending bills out of their Appropriations Committee before September 31^st. There will be a continuing resolution to keep the government operating and the two Appropriations Committees will work out a compromise spending bill. Unfortunately, it may take the 117^th Congress to actually pass such a bill unless the Democrats win big in November. If that happens the Republicans are likely to be more cooperative in passing a ‘compromise’ bill this year.

HR 7617 Reported in House – FY2021 DOD Spending

Earlier this month the House Appropriations Committee published their marked-up version of HR 7617, the Department of Defense Appropriations Act, 2021, and their Report on the bill. There is only one specific cyber mention in the bill, but there are a number of mentions of cyber related topics in the report; none specifically addressing control system security issues.

Cyber in HR 7617

While cyber operations are becoming a bigger part of overall military operations there is only one mention of the term ‘cyber’ in HR 7617. In §8125(a)(7) ‘Defensive Cyber Operations Army’ are mentioned as a potential target for funding for software development funds under the Research, Development, Test and Evaluation spending authorization.

Cyber Training

Various training initiatives are addressed in the Committee Report. Most of the mentions include a requirement to report back to the Committee on the progress of the related program. These mentions include:

• Pgs 10-11 - Civilian cyber workforce,

• Pg 32 - Cybersecurity professionals,

• Pg 320 - Cyber education collaboratives, and

• Pg 322 - Women and minorities in stem pipeline.

There are three rather vanilla mentions of cybersecurity processes in the Report. They include:

• Pg 113 - Standards and protocols on countering cybersecurity incidents,

• Pg 113 - Zero trust architecture, and

• Pg 318 - Distributed ledger technology research and development.

There is only one place in the Report where specific funding is mentioned in relation to cybersecurity processes, on page 325, under Arsenal Security. It states:

“The Committee believes that maintaining security, including threats from cyber-attacks, data piracy, and other technological risks, of Department of Defense arsenals is essential. The Committee directs that of the funds included under Industrial Operations, $3,500,000 is to implement efforts to combat these types of threats.”

Moving Forward

This bill will be used as the base for the second minibus spending bill in the House. The House Rules Committee will meet on Tuesday to set the rule for the consideration of the bill on the floor of the House, to include a list of which amendments will be authorized to be submitted from the floor. There have been 110 amendments for this portion of the bill submitted to the Rules Committee.

At this point it is not yet clear that the Democrats have the votes to pass the second minibus. They certainly have a majority in the House, but it is potential ‘no votes’ from the progressive wing of the party that could disable this bill. The problem is not the DOD portion of the bill, but rather a failure to ‘adequately sanction’ ICS and CBP in the DHS portion of the bill that would be the reason for the ‘Nays’.

The Rules Committee meeting has already been delayed one-day to add time to resolve this issue. Pelosi is aware that the Party needs support of the recently elected moderates that allowed the Democrats to take control of the House, so the DHS provisions cannot be too extreme. The Progressives, on the other hand, need to have strong punitive measures in the bill to appease their supporters.

The easy solution is to follow the example of last year, leave the DHS spending bill on the Committee floor and not consider it on the floor of the House. The resolution would then be left to the conference committee that would essentially craft a compromise spending omnibus spending bill before year end. And yes, an omnibus bill is almost a foregone conclusion; the Senate has not yet even been able to craft a single spending bill in Committee and the ‘August Recess’ is fast approaching (though, to be sure that recess may still be a victim of the COVID-19 disruption).

HR 7616 Reported in House – FY 2021 THUD Spending

Last week the House Appropriations Committee completed crafting and reporting on HR 7616, the Transportation, Housing and Urban Development, and Related Agencies Appropriations Act, 2021. The bill does not contain any specific cybersecurity or chemical transportation-safety requirements, but both areas are addressed in the Committee Report.

Cybersecurity

On page 74 the Report addresses Committee cybersecurity concerns about Amtrak train control systems and a 2019 Amtrak OIG report on those security issues. The Committee “directs Amtrak to comply with the OIG recommendations to improve the cyber security and resiliency of Amtrak’s train control systems” and to prepare a report for Congress on their actions.

On page 83 the Committee directs the Washington Metropolitan Area Transit Authority (WMATA) to work with DOT and CISA “to ensure that the agency is complying with best practices for the procurement of Industrial Control Systems.” Additionally WMATA is directed to” to include analysis of Internet of Things (IoT) and unknown and unauthorized devices in its cybersecurity plan.”

Chemical Transportation Safety

The report covers a number of issues related to liquified natural gas (LNG) transportation and handling. On pages 93 thru 94 there is an entire section related to LNG by rail transportation. The Committee requires a number of reports from the PHMSA about safety issues related to LNG by rail. The section closes out with the statement:

“Further, the Committee notes that the INVEST in America Act [HR 2; passed by the House and not likely to be taken up by the Senate] requires the Department to rescind any special permit or approval for the transportation of LNG by rail tank cars and places a stay on any regulation authorizing the transportation of LNG by rail tank cars until the Department completes a thorough evaluation of the safety, security, and environmental risks of transporting LNG by rail.”

On page 96 the Report addresses safety issues at LNG facilities (also regulated by PHMSA). It notes that the Committee “supports PHMSA’s efforts to hire 5 inspectors and engineers to help address the potential risks associated with LNG facilities.” It also expresses concerns about delays in the rulemaking efforts to update 49 CFR 193.

In two different areas the Report addresses the safe transportation of ‘energy products’. On pages 94 thru 95 addresses safety issues related to the transportation of crude oil by rail and includes a requirement for a congressional briefing “on the findings and recommendations of the Crude Oil Characterization Research Study [link added].” DOE and DOT have already sent their required report, the Report to Congress on the Crude Oil Characterization Study, to Congress.

The second area where the Report addresses ‘energy products is in pages 96 thru 97 where ‘energy products training’ is covered. It closes the short discussion by noting:

“As PHMSA’s responsibilities for the safe movement of LNG expands, the Committee directs PHMSA to enhance its training curriculum for local emergency responders to account for LNG facilities and the transportation of LNG in rail tank cars.”

Moving Forward

HR 7616 will be included in the second spending minibus, HR 7617. The House Rules Committee will meet on Tuesday to formulate the rule for consideration of this much longer and more controversial spending bill.

Bills Introduced – 7-16-20

Yesterday with both the House and Senate meeting in pro forma session there were 60 bills introduced. Of those three may receive additional coverage in this blog:

HR 7616 Making appropriations for the Departments of Transportation, and Housing and Urban Development, and related agencies for the fiscal year ending September 30, 2021, and for other purposes. Rep. Price, David E. [D-NC-4]

HR 7617 Making appropriations for the Department of Defense for the fiscal year ending September 30, 2021, and for other purposes. Rep. Visclosky, Peter J. [D-IN-1]

HR 7667 Making appropriations for the Departments of Commerce and Justice, Science, and Related Agencies for the fiscal year ending September 30, 2021, and for other purposes. Rep. Serrano, Jose E. [D-NY-15]