Congress Returns Today

Today marks yet another return of the lame duck session of Congress, this time after a nine (or ten) day Thanksgiving weekend. There are a lot of high-priority issues that must be dealt with by the end of the calendar year and it is unlikely that the legislative year will last past Christmas Eve. Only one of these high-priority issues, the budget, has the potential for directly affecting chemical security issues. But there are other legislative issues that might come up that might be of interest to the chemical security community.

The Budget

As of last night there was still no indication on the web sites for either the House or Senate spending committees that there was any movement on the budget. Since something must be done by midnight Friday (or the federal government will ‘shut down’), that means that there is almost certainly ‘behind closed doors’ work being done on the budget. I don’t have the kind of contacts necessary to tell you what is being discussed, but I would surmise that it falls into one of three categories:

• A short term continuing resolution with an end date of no later than December 24th;
• A long term continuing resolution with an end date after the first of the year; or
• An Omnibus spending bill.

The later would indicate that they had reached at least some form of agreement with the current Republican membership in the Senate that would allow for some of the spending priorities of the Democrats to be included in the budget. The first will take place if the Democratic leadership thinks that they have a decent chance wearing down opposition on at least some of their additional spending priorities in an Omnibus spending bill. If Reid sees no chance of getting any of the Democrats priorities included in the budget, we can expect to see them punt the problem to next year where the Democrats will do their best to ensure that the Republicans take the blame for any budget.

Any of the above options will almost certainly include specific language extending the authorization for CFATS. Now this is where it gets potentially interesting. Since it appears that any Omnibus bill will come out of the Senate (to be tacked onto one of the two budget bills passed by the House in June before the House Appropriations Committee stopped work for the year), a very important player in the bill will be Sen. Lautenberg (D, NJ) who is acting chairman of the Homeland Security Subcommittee.

Sen. Lautenberg has very definite views about what should be included in the CFATS program; for example he has been an active supporter of IST and of limiting federal pre-emption of State chemical security rules. Two years ago, Sen. Lautenberg was at least influential in the addition of revised federal pre-emption language in the Homeland Security spending bill.

It is highly unlikely that a full blown IST provision would be added to a spending bill; that would draw the ire of Sen. Collins, a vote that would be necessary for the Democrats to pass the bill in the Senate. Some other, carefully crafted, expansions of the CFATS authorization might make it past her opposition in the larger Omnibus bill. Any Lautenberg proposals would almost certainly pass, this year, in the House; not so likely next year.

CFATS Legislation

It continues to be unlikely that any CFATS specific bill will pass this year. The Senate Homeland Security Committee has yet to publish their report on HR 2868, the only bill that has any chance of being passed, so any consideration of that bill in the Senate is being delayed. A vigorous floor debate on that bill is a certainty, with Democrats sure to try to get IST and whistleblower provisions, at a minimum, added to the bill. This will be their last chance for at least two years to get such measures considered, much less passed.

The only other bill that has even a remote possibility for consideration is Lautenberg’s S 3598, the water facility security bill. Since Sen. Boxer’s Committee has not officially looked at the bill (their one hearing this summer was generic) and does not have a mark-up hearing planned, this bill will not make it to the floor for consideration. Even if it did, it would not garner enough votes for cloture.

Cyber Security Legislation

There are a number of bills in various stages of the legislative process that deal with cyber security measures and only one, HR 6423, actually addresses control system security. None of them is likely to be brought to a floor vote in either house. Sen. Lieberman (I, DE) made this point clear in the Stuxnet hearing earlier this month when he promised to re-introduce S 3480 early in the next session.

Inserted Stuff

This late in the session, and with a change in control coming in the next session, we are going to have to watch closely any controversial legislation that passes. Deals are going to be made and there are a number of people that have only a very limited number of options to get favorite things passed into law. This is a great prescription for little noticed items added to various bills, especially spending bills. We’ll have to watch for these additions.

Thanksgiving Recess Update

Yesterday, the Senate passed H Con Res 332, thus officially making 11-29-10 the end of the Thanksgiving Recess, as I noted yesterday.

BTW: When the House adjourned last night they invoked HCR 332, officially starting their Thanksgiving holiday; so much for their enhanced work ethic. The Senate will meet today.

Lame Duck Congress

While many pundits are focused on prognostication about the 112th Congress that will start in January, next week the 111th Congress will return to finish out the last month and a half of their term. The same people will be in charge and the same issues have to be addressed. The big difference is that many won’t be returning, so they won’t need to worry about what the voters think while others know that they will have more power to persevere in the next Congress. These two facts will color what can be done.

Chemical Security Legislation

The current CFATS authority expires on December 3rd. Congress will take some sort of action on legislation to continue that program. The most likely effort will be a one year extension in the DHS budget bill. If an actual budget doesn’t pass (a very real possibility if the Democrats try to stuff a budget bill with last minute attempts to add programs that won’t have a chance in the upcoming Republican controlled House) any continuing resolution will contain a CFATS extension for the length of the CR. I won’t be surprised to see a couple of short term continuing resolutions to give the 111th more time to pass their budget bill (probably a single, huge bill).

There are a number of bills that specifically address CFATS ranging from HR 2477 (which makes the current program permanent), thru HR 2868 (which slightly modifies and extends CFATS for three years), to S 2996 (which extends CFATS for five years). The only one that has any chance of passage is HR 2868 and I’ve discussed a number of possible scenarios that might result in passage in earlier blogs (most recently), but I won’t waste any money on betting on passage.

Adding chemical security requirements to water treatment facility security requirements is currently only addressed by one bill (the Senate version of HR 2868 removed the House provisions that included this), S 3598. The Senate has held only one hearing on this bill and the Environment and Public Works Committee is unlikely to report this bill. If it does, the Democrats are unlikely to be able to muster 60 votes (because of the current IST provisions in the bill) to force a vote on this bill. If it does get to a floor vote, it would almost certainly pass and could be taken up and passed in the House if the Senate vote comes early enough. Needless to say that Greenpeace is pushing for this bill to be passed.

Cyber Security Legislation

There were a number of cyber security bills introduced in the 111th Congress. None really specifically address control system security issues. Only one has come to a floor vote, HR 4061, and it passed easily. No action has been taken in the Senate on that bill, no hearings and no committee votes. While it is unlikely to come to a floor vote, it would probably pass. It could make it to the floor at the very end of the session if the leadership really wanted to get some sort of cyber security bill passed and nothing else worked. If there were no floor amendments, this bill would not need to go back to the House for further action.

S 3480 is the Senate bill that is best positioned to come to a floor vote. As I have mentioned on a number of occasions, we have been waiting for the Senate Homeland Security and Governmental Affairs Committee’s report on this bill since June. There is some opposition to some provisions of this bill so there would probably be a fairly extensive number of floor amendments that would be faced. This would make this a time consuming bill to pass, making it difficult in this short session. If the leadership on both sides of the aisle could agree to limit the amendment process this bill could probably pass, but not in enough time to make it through the House.

Other Legislation of Interest

HR 2200, the TSA authorization bill, has been ordered reported in the Senate (last year), so it could come to the Senate floor. New concerns about cargo screening, and passenger screening technology could lead to a large number of floor amendments, again making this a time consuming bill to pass. It would have to go back to the House, because of changes made in committee. That makes it more difficult to pass in the short session.

HR 4842, the DHS S&T authorization bill, passed in the House but has had no action taken in the Senate. This could be a sleeper bill that could slide through a floor vote in the Senate if the leadership decides to take it up.

Watch Them Closely

While many people have called the 111th a ‘do nothing’ Congress, there have actually been a significant number of things passed. We will probably see a large number of little noticed bills making their way quickly through the legislative process in the lame duck session. Most will be mainly non-controversial, but lots of stuff can get tacked onto these bills. The budget bill(s) will be particularly vulnerable to stuffing with a number of Congress Critters trying one last time to get their personal favorite idea into law. This session could get very loud and very ugly, but we’ll have to pay close attention to the quiet stuff.

Lame Duck Congress

There was an interesting opinion piece over on WSJ.com last week about apparent planning for legislative work in a lame duck Congress following a successful re-taking of the House by the Republicans this fall. Nothing in the article by John Fund mentions CFATS, but it leads one to think about what if? I’m not so sure that the Republican resurgence is any where near a done thing as the article implies, but most commentators at this point in the election cycle seem to accept that it is at least a possibility. At this point no one is seriously mentioning the possibility of a Republican majority in the Senate, but it seems nearly certain that it will be further from a super-majority for the Democrats than it currently is. So what does this mean for the CFATS reauthorization? First off, the House has done their job (from the Democrats point of view) in passing HR 2868. The only way that the potentially out-going majority in the House will have any way to deal with that will be in Conference if the Senate passes a different version of the bill. Not much chance of that happening. There is another CFATS bill currently in the hopper in the House, HR 5186; the companion bill to Sen. Collins’ S 2996. If Chairmen Thompson and Waxman become convinced that the Democrats will loose in November, there is a remote possibility that HR 5186 could be dealt with in their Committees, adding some of the HR 2868 provisions most dear to those two gentlemen. Those provisions could include labor participation in the security process, background check protections for employees, and whistleblower language. Properly worded those provisions could probably be supported by Rep Dent (R, PA) and the other Republicans on the Committees. I would also expect that a watered down inherently safer technology provision could be added to the bill. If the Democrats added a version of the IST wording being developed in DHS, I think that most of the Republicans would vote against the amendment, but some could vote for the bill. That IST provision would call for all high-risk facilities to evaluate alternative technologies and to report on that evaluation in their site security plan. I expect that a version of S 2996 like that could pass in the Senate Homeland Security and Governmental Affairs Committee. The question would then become how it would fare on the floor of the Senate. Without a clearly impending massive defeat in the House in November, I don’t think that a version of CFATS authorization without some form of IST mandate can make it to the floor of the Senate. In a lame-duck Congress that might just change. Democrats might be willing to agree to get what they can. I don’t think that Senators Lautenberg and Rockefeller would be willing to go along with the current five year term of S 2996. I think that they would accept a two or three year term with the expectation that they could regain control of the House in the next election and have another chance to modify CFATS. Five years would just put it too far off into the future. I am firmly convinced that HR 2868 is completely dead now. The Republicans only have to prevent a vote in the Senate, and that shouldn’t be too hard. In fact, an impending victory in the House will make it even easier for the Republican leadership to hold their caucus together in a firm voting block. And a lame duck Congress would have no chance of getting the votes in the Senate to push through HR 2868. There won’t be a floor vote on S 2996 or HR 5186 before the election. The Democrats certainly cannot afford to upset an important part of their base before the election. They will need every vote they can get in the close election and pissing off the IST supporters is a good way to get large numbers of them to stay home. They need those votes to have any chance of holding on.