HR 901 – A lack-of-power play

The status of HR 901, Chemical Facility Anti-Terrorism Security Authorization Act of 2011, was once again updated on Friday while the House met in a pro forma session. The House Energy and Commerce Committee was granted another extension of time to review the legislation; this time until June 8th, 2012. This is the sixth such extension granted since the bill was co-referred to the Committee in March of last year.

Any reasonably intelligent observer of congressional committee politics knows that the Energy and Commerce Committee will not report this bill. It would give explicit jurisdiction for oversight of the  CFATS program to the House Homeland Security Committee. The current situation gives co-oversight responsibility for that program to the Energy and Commerce Committee. This is part of the legacy of creation of the Department of Homeland Security and the inability of congressional leadership, particularly in the House, to rationalize oversight of that department.

The indecisiveness of the House Republican leadership (not that the Democratic leadership in the previous Congress was any more decisive in this regards) has led us to the point where two house bills, HR 901 and HR 908, attempting to provide long-term extension of the CFATS program, both duly reported, have not, and probably will not, come to a vote on the House floor.

HR 908 Report Published

While yesterday was a pro forma session for the House it did allow for some housekeeping measures to be completed. One of those was the publication of the Energy and Commerce Committee Report on HR 908, the Full Implementation of the Chemical Facility Anti-Terrorism Standards Act, House Report 112-211.

Minority Views

There is very little new information in this report, as one would expect from a document that is supposed to reflect committee action on the bill in question. Probably the most interesting portion of the report is the ‘Minority Views’ portion at the end of the report. Surprisingly there is no mention of the topic of mandating inherently safer technology or even encouraging the replacement of dangerous chemicals with safer alternatives at high risk chemical facilities.

This section of the report does address the concern about the exemption of a number of classes of facilities from coverage under the CFATS regulations continued in this revision. The most obvious case of water treatment facilities is mentioned by not as in as much detail as the minority staff discussion of the exemption for NRC covered facilities or even federally owned facilities.

Another complaint that is addressed publicly for the first time in this report is the concern that the §550 authorization allows the Secretary to approve site security plans that do not meet the standards set forth in the Risk-Based Performance Standards published by the Department. This is based on the permissive language that states that the Secretary “may disapprove” instead of directed language like “will disapprove”.

The remainder of the minority concerns covered in this section are fairly standard objections that the Democrats have had with the existing program. They include worker protections against discrimination in the application of the background checks, whistleblower protections, concerns about the sharing of security information with the public and concerns about the lack of public and worker participation in security planning.

All in all the “Minority Views” section is well worth reading in this report, especially among the supporters of the current program. Addressing some of these concerns might make it easier to pass this legislation in both the House and Senate.

Reader Comment – Bipartisan HR 908

An anonymous reader objected to my characterization in this morning's blog of the bipartisan support (or lack thereof) of HR 908 in the Energy and Commerce Committee yesterday. Anonymous points out that there were five Democrats who voted for the final measure, better than the ‘couple’ that I had guessed at. I am glad to have that clarifying information; it is a shame that it wasn’t included on the Committee web site. I guess that it is just another case of open political discourse happening more in theory than in practice.

Bipartisan Support

Anon then went on to note that what is important is that “there is now a House bill reported out of committee with notable Democratic support, which will provide momentum for a IST-less bill to gain additional support by both parties when it reaches the House floor”. While I always prefer to see legislation that appeals to the moderates of both parties (it is less likely to see the ‘other’ Party try to undo it when they resume power), I didn’t see much effort in this bill to achieve that goal.

Adopting the whistleblower or worker participation amendments would have been a very low cost (both politically and monetarily) method of attracting middle ground Democrats. And, as I have said on a number of occasions, I think that it is possible to construct an IST provision that could be acceptable to industry, if the effort was taken.

Having said that, five Democrats signing on in a Committee vote is significant. It is much better than the straight party line vote that attended the passing of HR 2868 in the 111th Congress. Of course it doesn’t help much when the Democratic co-sponsor publicly discusses his misgivings with the legislative process. That plus the fact that the Republican leadership has historically done a much better job of maintaining support for the partly line than the Democrats have ever been able to do. Well, maybe five Democrats isn’t that impressive.

Premature Discussion

Anonymous closes his comment with a politically questionable statement; “Any talk about what may happen in the Senate is premature until the House approves either 908 or 901.” Back when the minority Republicans were about stopping HR 2868 they could afford to take that short view of the situation. They should, however, learn the lesson taught by the Democrats on that bill. The failure to take the long view of what could get passed in the Senate ended up with the House passing a bill that completely pleased their base, but was never even looked at in the Senate.

If the chemical industry and their Republican supporters really want to get a long period reauthorization of CFATS, then they had better learn that politics requires a longer view than the next vote. Robert Heinlein called politics the ‘art of the possible’. Anyone that forgets that is just posturing; accomplishing nothing.

For HR 908 or HR 901 to become law, they would need to be passed by the House in such a form that they will be considered by the Democratically (loosely) controlled Senate. This means that they need to include a sop to Sen. Collins (R, ME), who effectively controls the Homeland Security Committee on this topic. It will also require provisions to defuse the opposition of the core Green-Labor Democrats. Failure to take this into account will lead to another two years of relying on budget measure extensions while the House passed pure industry bill sits waiting to be considered in the Senate.

Chairman Upton has not apparently learned this yet. Chairman King are you listening?

HR 908 Amended and Passed In Committee

As expected the House Energy and Commerce Committee amended and reported favorably on HR 908. With a final vote of 33 – 16, the supporters of this bill can claim bipartisan support, but there is nothing here that labor or environmentalists will find even minimally acceptable.

Two Amendments Adopted

The Committee approved two amendments, both proposed by Rep. Shimkus (R, IL). The first deals with background checks while the second modifies the dates listed in the bill to provide for a full six year extension of the bill. The original bill showed the current expiration of §550 as October 4, 2010 and extended it until October 4, 2017. The date changing amendment corrected the current expiration to 2011 as provided in the FY 2011 budget bill. Then it modified the new expiration date to so that the full extension of the bill would match the original intent of the bill. Rep. Green (D, TX) attempted to reduce this by two years, but his amendment to the amendment was rejected.

The background check amendment adds language to §550 that specifically states that no “security background check is required under this section for an individual holding a valid transportation security card [a Transportation Workers Identification Credential (TWIC)] issued under section 70105 of title 46, United States Code” {§3(i)(1)}. If that wasn’t clear enough it goes on to state that a facility owner/operator can allow individuals with a TWIC or a ‘qualifying alternate security background check’ to “have access to restricted areas or critical assets of such facility without the satisfaction of any other additional requirements” {§3(i)(3)}.

There is an added provision that will certainly draw the ire of organized labor. The final sub-paragraph of the amendment states that:

“Nothing in this subsection shall be construed to prohibit an owner or operator of a chemical facility from requiring, for reasons other than compliance with this section, that prospective or current employees or contractors undergo any additional background checks in addition to that required under the risk-based performance standards issued under this section.” {§3(i)(4)(B)}.

Labor organizations have been complaining that the CFATS background check requirements, vague as they are, would/could be used by management to retaliate against labor organizers or union members. This provision along with the lack of specific language on redress procedures (currently loosely covered under § 70105 title 46 USC) will be seen by labor leaders as another justification for their concern about CFATS. I think that the wording of the Shimkus amendment attempted to deal with that concern, but I doubt that the opposition will see the subtle wording as adequate.

Major Changes Attempted

Ranking Member Waxman (D, CA) attempted to completely rewrite the legislation with his amendment. Unfortunately, the copy of the Waxman amendment provided on the Committee web site has been corrupted some how; many pages appear to be missing. It appears though that he intended to replace the §550 authorization with a bill similar to that passed in the House in the last session. The limited number of pages provided do not allow me to determine if the amendment actually included coverage of water treatment facilities.

It is not surprising that the Republican controlled Committee did not approve the Waxman amendment. The final vote was 18 – 26 on this amendment. I would assume that it was a party line vote, but we can’t tell as the Committee web site does not list the actual votes of the members only the total numbers. We’ll have to wait to see the Committee report to be sure. I will say that the Committee web site for this markup does not appear to comply with the intent of the new Republican rules for an ‘open’ Congress.

Minor Changes Attempted

The remaining amendments offered by the Democrats were relatively modest, and expected, changes to the wording of §550. The most controversial was offered by Rep. Waxman; he proposed to require that the Secretary either approve or disapprove a site security plan within 180 days of submission. Anyone seeing the current pace of the SSP approval process can understand the reason for this proposed amendment. Unfortunately, I think that this amendment probably would have been counter-productive, resulting in disapproved SSPs instead of the current procedure of DHS working with facilities. Something clearly needs to be done to resolve this problem, but I don’t think that this would have addressed the underlying problem.

The amendment offered by Rep. Capps (D, CA) also attempted to address this issue by making a minor word change in §550(a), changing from ‘may disapprove’ to ‘shall disapprove’. While more subtle than the Waxman amendment, this still would have changed the cooperative atmosphere between covered facilities and DHS.

Whistleblower protection would have been added by the Butterfield amendment, but the Chairman ruled that the amendment was “Nongermane” so the amendment never came up for a vote. I didn’t get a chance to actually watch the hearing, nor was a web cast available on the Committee site as of last night so I don’t know what held up this amendment. Again, a page appears to be missing from the copy of the amendment provided on the Committee web site. This is getting to look like really sloppy staff work.

Rep. Green (D, TX), a co-sponsor of the bill, proposed an amendment that would have added language providing a requirement for employee participation in the security processes required under § 550. This has long been a desire of organized labor as it also provided for participation of labor unions (excuse me, bargaining agent) in the planning process. The language here was much simpler than the provisions found in previous bills.

No Bipartisan Bill

The final vote on the amended bill was 33 – 16. Again the actual details of the vote are not available on the website, but it appears that there was probably a couple of Democrats (most likely including the co-sponsor, Rep Green) that voted for favorably reporting the bill. Even with a few Democrats signing off on the bill, I would hardly call this a bipartisan approval. There is nothing in this bill that would allow for enough Democrats in the Senate to vote for this bill to allow its passage.

Industry will (and has quite quickly) provide support for this bill, but labor and environmental organizations will fight this bill. In a divided Congress this will make it difficult to get action completed. If the marked up Homeland Security spending bill that we expect to see come to the floor next week contains, as expected, a one-year extension of the current CFATS authorization, there will be no pressure for the two sides to reach some sort of compromise on this issue.

If the chemical industry really wants a long term extension of the CFATS program to provide some level of predictability for the program, they are going to have to figure out what they can give to the opposition to allow them to agree to that extension. This bill does not do that.

Energy and Commerce HR 908 Markup to Start Today

The House Energy and Commerce Committee will begin another two-day markup hearing this afternoon that will include action on HR 908, the Full Implementation of the Chemical Facility Anti-Terrorism Standards (CFATS) Act. As with the May 10th hearing that was to have included action on HR 908, this afternoon’s meeting will only be for making opening statements; actual work on the bill will take place tomorrow morning at 10:00 am EDT.

Again, this hearing is also scheduled to deal with two potentially controversial authorization bills. The second bill here will be HR 1939, dealing with the Consumer Product Safety Commission. This time HR 908 has been given first listing; presumably this means that it will be taken-up first for action tomorrow morning.

There are no proposed amendments listed on the Committee web site, but the Committee memo about the HR 908 markup notes that members may file amendments to be considered up to two hours before they are to be offered for consideration during the hearing. This provides an effective deadline of 8:00 am tomorrow morning for submission of amendments.

There have been an increasing number of media reports that there is some possible dissention in the Committee about the lack of some of the provisions that Democrats have been pushing for the last couple of years. These have included reports that Rep. Green (D,TX), a co-sponsor of the legislation (officially making the bill bi-partisan) has expressed some concerns about the amendment process for the bill.

Regardless of any potential Democratic opposition, this bill will certainly be reported favorably by the full Committee tomorrow. The only thing that remains to be seen is that if there are any amendments that might make its acceptance in the Democrat controlled (barely) Senate more likely. The most likely amendment to be included (and still a low probability event) would be the elimination of the water treatment facility exemption to CFATS coverage. It’s not clear that the Committee would have the authority to extend that change to waste water treatment facilities.

Congressional Hearings Week of 5-23-11

The House is back in town after a long week of checking the pulse back home and the Senate was in session the whole time. We’re now back to both houses working at the same time and that makes for an interesting week of hearings for the chemical security community. We have three hearings that will address cyber security, but I’ll be surprised to hear two minutes on control systems. There are two money bills being looked at, but we’re interested in the DOD bill just because of potential cyber security issues.

Cyber Security

The week starts off with the Senate Homeland Security and Governmental Affairs Committee taking an official look at the President’s new cyber security proposal that I talked about briefly last week. I focused on potential control systems issues, but that isn’t what the proposal was really about. The Administration is sending representatives from DHS (Reitinger), DOD (Butler), DOJ (Chipman), and DOC (Schwartz). The Lieberman-Collins team will sort out the details; I just hope they ask at least a couple of questions about control system security.

On Wednesday there will be two additional cyber security hearings on the other side of the Dome. The House Judiciary Committee will be holding an oversight hearing looking for ‘Innovative Solutions to Challenging Problems’. The House Science Committee will be looking at ‘Federal Cybersecurity Research and Development Efforts’. Both hearing will be conducted by two separate sub-committees. The inevitable focus will be on information security, but some one may slip up and ask someone about a control system by accident. No word available yet on the attendees at either hearing.

Money Bills

The House Appropriations Committee is meeting on Tuesday to discuss their ‘Report on the Suballocation of Budget Allocations for Fiscal Year 2012’. Two bills will be discussed, but only the Homeland Security Appropriations Bill counts for this community. How far down they are going to ‘sub-allocate’ the money remains to be seen, but it has to get closer to the program level (CFATS, TSA Ground Security, MTSA, or CERT) than does the part of the draft bill that I’ve already reported on.

HR 1540 will be discussed in front of the House Rules Committee this week to formulate the rule to bring it to a floor vote in the House. I previously mislabeled this bill as an ‘appropriations’ bill; it is just an ‘authorization’ bill. Not much here for Homeland Security or chemical security folks, but there may be mention of the DOD and cyber security matters tacked on somewhere along the line; it makes it to the list.

The Missing Hearing

The big hearing that everyone in our community expected to watch this week was the House Energy and Commerce Committee markup of HR 908. This was originally scheduled the week before last, but got bumped because the markup of a medical funding bill went long (nothing controversial there…). It was postponed until this last week, but the House took the week off to visit home folks. As of noon today there was nothing on the Energy and Commerce web site about a markup hearing for this bill; that doesn’t mean one isn’t going to happen, its just that no one is talking about it yet.

There have been news reports about dissention in the ranks, with Rep. Green (D, TX) not getting to add some of wording that he would like to the bill that he co-sponsored. The Democrats can only pass so hard; they don’t think the current bill will make it through the Senate (nor do I), but too much in the way of IST, water facility coverage, worker involvement, whistleblower protection, or citizen law suits and the bill will not get to the Senate; it will die in the Republican controlled House.

Oh, and don’t forget the power play between the Energy and Commerce Committee and the Homeland Security Committee about who gets oversight authority for CFATS.

There’s a lot of behind the scenes stuff going on with this bill and its counterpart in the Homeland Security Committee (HR 901). It will be interesting to see if any of it makes it to the public side of the process.

House Subcommittee Approves HR 908

Yesterday the Environment and Economy Subcommittee of the House Energy and Commerce Committee passed on a voice vote an amended version of HR 908, the Full Implementation of the Chemical Facility Anti-Terrorism Standards Act. This makes it the second CFATS extension bill approved by a House subcommittee this session.

The sole amendment considered, and passed, by the Subcommittee was proposed by Rep Shimkus (R, IL) the Subcommittee Chair. The amendment added §3 authorizing appropriations supporting the CFATS program through FY 2017. The authorized spending level would be set at $89.9 Million. This is down (9%) from the $99 Million requested by the Administration for FY 2012 and even further down (14%) from the $105 Million budgeted in FY 2010.

There is nothing in the hearing record that suggests where the funding savings would come from. The most easily controlled variable in the funding equation would be the number of chemical security inspectors. I guess that the case could be made that since the Department has been (very) slow to complete their SSP inspection process that they don’t really need that many inspectors; shortsighted but the case could be made.

Reader Comment – CFATS Committee Games

Last Friday an anonymous reader posted a comment on my blog about the hearing for HR 908 correcting a statement I made about the House Homeland Security Committee being required to review the bill. The reader was correct; the bill was referred only to the House Energy and Commerce Committee. I had made the unconscious yet horrendous assumption that the Republican leadership of the House had finally gotten over this serious bit of insanity.

Prestige and Power

Now it would seem to be obvious to anyone with a modicum of intelligence that the House Homeland Security Committee would have at least shared responsibility for the supervision of the Chemical Facility Security Anti-Terrorism Standards (CFATS) program. It is, after all, a counter-terrorism security program operating out of the Department of Homeland Security. Most people would assume that the Homeland Security Committee would have primary oversight responsibility.

‘Most people’ would of course be forgetting that prestige and political power trump reason every time. It would seem that the Energy and Commerce Committee can claim primacy over the extension of the CFATS program because it is not authorized as part of the Homeland Security Act of 2002, but as part of a budget bill. And it seems that the E&C Committee has never gotten over its loss of supervision of other security programs to the upstart Homeland Security Committee; after all that decreased the status and power of its Chairman.

Last session we saw a modicum of cooperation between the two committees in the crafting of HR 2868. At the time it looked like the new Chairman of the E&C Committee was able to get around the change in status, but now it turns out that the only reason for that cooperation was that HR 2868 clearly added water facility security to the bill under provisions of an EPA law, not the Homeland Security Act, ensuring that E&C would have at least shared jurisdiction over CFATS in perpetuity.

I had hoped that with the Republican appointment of a chairman for the E&C committee who was an outsider that this marked a change in the leadership’s willingness to start to address Homeland Security and the other committees that had to surrender part of their power in the consolidation of responsibility for homeland security in a single committee. I guess that I was wrong.

Loss of Limited Oversight

Of course Chairman Shimkus and Ranking Member Waxman are likely to loose all vestige of their authority over CFATS during this session of Congress. Any bill will have to make its way through the Senate Homeland Security Committee and Sen. Collins has made it clear that she expects to make at least cosmetic changes to the program that would include re-writing the authorization as part of the Homeland Security Act. Since there is nothing objectionable to industry in S 473 (and industry actually touted a version of this bill last session that was substituted for HR 2868 in the Senate) it seems likely her bill will make the final legislative cut.

There is a complex way that Shimkus/Waxman can maintain influence over CFATS. If they include language in the bill that would remove the exemption water facility and waste water treatment facility exemption to CFATS. They could start be trying to add the same Title II and Title III from HR 2868 from last session. I doubt that the IST provisions or citizen law suit provisions would make it through the legislative process. The water treatment industry is not that powerful, but I would expect the chemical industry to oppose the inclusion of that language in even parts of the bill that don’t actually affect them.

This would, of course require that Shimkus would have to stall any action on HR 901 and HR 916, the other two House bills that would extend the CFATS authorization. Then he would have to pass HR 908 in Committee (very easily done apparently) and yet not allow it to come to the floor until the House takes up S 473. They he would have to get the House Rules Committee to go along with accepting the language of HR 908 as passed in Committee as a substitute for the language in S 473. Then he would have to maintain enough control of the Conference Committee to keep out of the final bill any mention of the Homeland Security Act. Good luck.

There is a potentially simpler way to maintain a finger in the CFATS pie. Forget HR 908. Take up HR 916. That keeps the authorization language in §550 while adding provisions on training and exercises as amendments to the Homeland Security Bill. This is close to the Collins language and might be passable in the Senate. It would end up giving the two House committees shared responsibility for CFATS, but there is no way to get around that.

Unfortunately, all of these options take away any possibility of comprehensive chemical security legislation. Oh well, that probably wasn’t possible anyway.

HR 908 Hearing

Yesterday the Environment and Economy Subcommittee of the House Energy and Commerce Committee held its initial hearing on HR 908, one of four bills introduced earlier in the month that would provides extended authorization for the CFATS program. Readers might remember that this bill is one of the most straight forward of the four; simply extending the current §550 authorization until October 4th, 2017.

There were no real surprises in the witness selection; three industry representatives favoring the bill and one union official opposing the straight extension as inadequate. The government witness was the NPPD chief, Under Secretary Rand Beers. It was disappointing that Acting ISCD Director Driggers did not share the witness table because Beers just did not have the detailed knowledge of the CFATS program that the hearing clearly called for. But then, he was just there to present the Administration’s policy position.

HR 908 is clearly on the fast track for approval in this Committee. The only negative voice on the questioning side of hearing was provided by Committee Ranking Member Waxman (D, CA). Sub-Committee Ranking Member Green (D, TX) is a co-sponsor of the bill and represents Houston, TX so it is clear that he supports the straight CFATS extension.

SSP Approval Delays

I was hoping for a more detailed grilling of Beers on the delays in SSP review process, but I was sorely disappointed. There was virtually no discussion of the delays in his prepared testimony. The only real questions on the delays came from Rep. Murphy (R, PA), the sponsor of HR 908. He asked how much longer it was going to take to complete the pre-authorization inspections for the Tier 1 facilities. Beers responded that he had instructed his staff to have the Tier 1 PAIs (only 41 to go) done by the end of the calendar year (NOTE: that leaves just something over 4,000 PAI’s left to go). Beers then offered that the delays were due to the desire to have a cooperative exchange with the facilities to work towards increasing the facility security posture.

There were two other takes on how the current delays should affect the approval of HR 908. Waxman questioned rubber stamping a program that was so far behind schedule, noting that four years into the program there were no facilities with approved site security plans. Waxman’s prepared statement urged revisions of the bill similar to those found in the House version of HR 2868 from last session, but had nothing to say about how the program could be changed to make the SSP approval process more effective.

The opposite point of view was taken by Rep. Cassidy (R, LA). He questioned the Administration’s support for adding IST provisions to the CFATS program, asking how they could suggest adding program changes to a process that was clearly overloaded. Beer’s response was that given a reasonable deadline for implementation of the IST provisions and building on the lessons learned from the current implementation he was confident that DHS could manage the added responsibility.

Other Information

There were some interesting bits and pieces of information that did come out of the Beer’s testimony. First, in response to questions from Chairman Shimkus (R, IL), Beers provided details about the CFATS budget request noting that the Administration was requesting just $99 Million in the FY 2012 budget, down from a high of $105 Million just a couple of years ago. He provided no explanation of how the Department intended to continue to hire more inspectors on the reduced budget.

Beers also reported that Secretary Napolitano had directed NPPD and the Coast Guard to come up with a way harmonize the chemical security requirements for CFATS facilities and chemical facilities covered under the Maritime Transportation Security Act that are exempted from the CFATS rules, whether or not there was legislation requiring that harmonization. That was mainly old news, but he then went on to say that the Committee had completed its work and the plan was enroute to the Secretary for approval.

Rep. Green brought up the issue of the personnel surety program, voicing industry concerns about ISCD imposing a new set of background check requirements on top of the TWIC program and the hazmat certification for the commercial driver’s license. Beers noted that ISCD had been working with industry on the program and was ‘near’ the point where they would introduce the program. The number of industry complaints about the Department’s stance on background checks does not reflect much ‘working with industry’, but we will have to wait for the roll out to see how cooperative the Department has been.

While Beers was clearly carrying the Administration’s request for adding IST provisions to the CFATS program, he did little to actually support that position. He told the Sub-Committee that the Department had required the S&T Directorate to take an initial look at IST, but that NPPD had not looked at how the concept could be implemented. This ignores the work done by ISCD in conjunction with the Center for Chemical Process Safety last year on a potential ‘review and report’ IST requirement.

The most surprising information of the hearing concerned the ‘indefinite’ agricultural extension of the Top Screen requirements. In response to questions Beers noted that ISCD had completed some ‘studies’ on the issue but was still not near coming up with a way of dealing with CFATS implementation for agricultural producers. What was surprising was how little anyone in the room knew about the program. Beers essentially told the Sub-Committee that the only chemicals of interest were fertilizers, ignoring department concerns about pesticides. When asked if propane was a potentially covered chemical for agricultural producers, Beers initially stated that propane was not an Appendix A chemical, OOPS. Oh well, that level of program knowledge should have been provided by the missing ISCD Director.

Moving Forward

Chairman Shimkus made it clear that this bill would be marked up in the near future and questions by both Murphy and Green made it clear that they expected to see additions made to the bill. Rep Waxman obviously held out hope of adding IST provisions as well as whistleblower protections and information sharing requirements. This bill will not be as simple as it currently is if/when it makes it to a House floor vote; especially since it still has to go through the Homeland Security Committee.

Congressional Hearings – Week of 3-28-11

It’s going to be a busy week for Congressional hearings of interest to the chemical security community, CFATS, cyber security and weapons of mass destruction will all get their hearing in Congress this week

FY 2012 Budget Hearings

While Congress has yet to fully fund FY 2011 they are still working on the FY 2012 budget process. This week DHS’s National Protection and Program Directorate (NPPD) gets to explain-justify the President’s budget request before the Homeland Security Subcommittee of the House Appropriations Committee. Under Secretary Beers and Deputy Under Secretary Reitinger. Both CFATS and CERT show up in this area of the budget so this will be an important hearing for the community. This hearing will be on Thursday at 2:00 p.m. EDT.

CFATS

While CFATS may be discussed in the budget hearing, it will be the main topic of conversation before the House Energy and Commerce Committee. On Thursday at 9:00 a.m. EDT they will hold a hearing on HR 908, Rep. Murphy’s (R, PA) Full Implementation of the Chemical Facility Anti-Terrorism Standards Act. Chairman Upton (R, MI) has already publicly endorsed this bill which is why it’s first appearance will be a full Committee hearing. The witness list has yet to be published.

This bill is the simplest of the four bills introduced to date to extend the CFATS authorization. This one simply extends the current expiration until October 4, 2017. That doesn’t mean that this will necessarily be a simple hearing. In the 112th Congress this Committee was responsible for the addition of water treating facilities to HR 2868 so there will be at least some interest in adding provisions to this bill to remove the water facility exemption to CFATS. We’ll watch to see if the American Water Works Association has a witness at this hearing.

Cyber Security

Again, while cyber security may be a topic at the budget hearing, it will be the main focus before the Senate Commerce, Science and Transportation Committee on Tuesday at 2:30 p.m. EDT. Sen. Rockefeller’s (D, WV) Committee will look at the consequences of cyber attacks with witnesses from the FBI, IBM, Verizon and the American University.

There probably won’t be much in the way of specific mention of control systems. Still, since Sen. Rockefeller has yet to introduce cyber security legislation in this session, it would be prudent to watch this hearing to see if we can tell what he will include in his inevitable bill.

WMD

Finally, it must be time for me to go to the Dentist for a cleaning because the road show team from the 9/11 Commission is back before Congress. They are going to be appearing before the Senate Homeland Security and Governmental Affairs Committee on Wednesday at 10:00 a.m. EDT to update Senators Lieberman (I, CT) and Collins (R, ME) on the risk of weapons of mass destruction. One always hopes that someone will sooner or later mention that the cheapest and easiest WMD attack would be a conventional terrorist attack on a high-risk chemical facility, but I expect that they will once again harp on nuclear weapons and biological warfare, lest we forget.

To Be Announced

Some time late this week there will be a new bill introduced providing for the funding of the Federal Government for the rest of this fiscal year beyond April 8th and there will be a House Rules Committee Hearing on the bill. Hopefully that will take place this week, allowing for enough time for subsequent action on another short term spending measure next week before the current CF expires. It is too much to expect that the Appropriations Committee will ever meet on one of these FY 2011 spending bills.

Two Remaining CFATS Extension Bills

As I mentioned last week there were four CFATS extension bills submitted in Congress last Friday. I have already reviewed S 473 and HR 901. Today I’ll take a quick look at the two remaining bills; HR 908 and HR 916. Both bills are relatively simple and straightforward.

HR 908

Representatives Murphy (R, PA) and Green (D, TX) introduced HR 908, the Full Implementation of the Chemical Facility Anti-Terrorism Standards Act. This bill has a single provision; it extends the expiration of the current §550 authority for the CFATS regulations until October 4th, 2017. In keeping with the title of the bill the intent seems to be to allow the full implementation of the current CFATS program. Given the current pace of the SSP inspection process, it could easily take until 2017 or even longer.

According to a Houston, TX based blog the Chairman of the House Energy and Commerce Committee, Rep Upton (R, MI) has endorsed this bill. This is important because his Committee is one of two committees that has been assigned to review the three house CFATS bills (the other, of course being Homeland Security).

HR 916

Congressman Dent (R, PA) introduced HR 916, the Continuing Chemical Facilities Antiterrorism Security Act of 2011, a title shared with S 473. This bill is a duplicate of last session’s HR 5186 which was a companion bill to the one offered in the Senate by Sen. Collins (R, ME) (which was amended in Committee to become what is now S 473).

This bill would extend the CFATS authorization until October 4th, 2015 and would add the essentially the same training and exercise provisions found in S 473. The advisory committee and the repeal of §550 from S 473 are not included in Dent’s current bill.

Prospects

So we have four separate bills that would extend the current CFATS authorization. Two are theoretically bipartisan (S 473 and HR 908). Three have the support of committee chairs [S 473 (Collins is the moral equivalent of chair of the Senate Homeland Security Committee), HR 901 (King of the House Homeland Security Committee) and HR 908 (Upton of the House Energy and Commerce Committee)]. We can expect a re-issue of last years’ bills from Sen. Lautenberg, but they won’t make it out of committee; they are too partisan for this Congress.

Any of the three House bills could pass in the House this year, but all would certainly be modified in Committee and on the floor. It will probably come down to HR 901 as King is a co-sponsor and Committee Chair. The Senate bill will be the most heavily modified in a floor debate. Since it probably would not be directly taken up by the House (due to likely weakened IST, labor participation and whistleblower provisions that I expect to see added on the floor of the Senate) the language would most likely be added as a substitute for what ever house bill gets sent to the Senate.

If we get specific CFATS legislation this year (and the chances are probably better than they have ever been) it will probably include at least some of Sen. Collin’s provisions.

CFATS Extension Legislation

Yesterday, Congress started the process for a more formal extension of the Chemical Facility Anti-Terrorism Standards (CFATS) program with the submission of four separate bills to extend the authorization for that program. None of the bills have yet been published by the GPO (and probably won’t until sometime next week), so we don’t know what provisions are included or for how long each bill would extend the authorization.

The four bills with sponsors are listed below:

● S 473 – Senators Collins (R, ME), Landrieu (D, LA), Portman (R, OH), and Pryor (D, AR) [8:21 pm 03-04-11 Corrected party affiliation of Sen. Collins]

● HR 901 – Representatives Lungren (R, CA), King (R, NY), Long (R, MO), Marino (R, PA), McCaul (R, TX), Rogers (R, AL), Walberg (R, MI), and Walsh (R, IL)

● HR 908 – Representative Murphy (R, PA) and Green (D, TX)

● HR 916 – Representative Dent (R, PA)