More Chem Security Details from Omnibus Appropriations Act

NOTE: While I was working on this blog posting last night AP began reporting that Sen. Reid (D, NV) was no longer planning on bringing this amendment to a floor vote due to the lack of enough Republican votes to get a cloture vote. It now appears that the Senate Appropriations Committee will be working on a short term Continuing Resolution with a termination date sometime next February. This whole appropriations thing is far from resolved. I’m still posting this to show what has been under consideration.

As promised I have had a chance to review the DHS explanatory statements from the Congressional Record for December 14th. The Senate Appropriations Committee web site now has a link to the 2nd part of that statement covering the remainder of the bill. The DHS portion of the statement can be found at pages S9709 to S9733 (to view individual pages go to this page and insert the specific page number in the block at the bottom of the page).

Reports Required

The explanatory statement includes requirements for number of reports to Congress about various parts of the CFATS program and other chemical security related programs. The required reports include specific reports listed in the statement and reports included by reference to the Senate Report on S 3607 (Senate Report 111-222). Subjects include:

• Status of expedited hiring of chemical facility inspectors (delayed again this year because of the lack of a DHS spending bill) (Senate Report pg 98)
• Status of “the plans to resolve the differences between and standardize risk evaluations for chemical facilities regulated under Chemical Facility Anti-Terrorism Standards and the Maritime Transportation Security Act” (S9709)
• The “the feasibility and merits of establishing a Deputy Assistant Secretary for Surface Transportation to lead the security programs and personnel for non-aviation transportation security” (S9714)
• The process to expedite industrial control system security standards development (S9717)

CFATS Requirements

The Senate Report specifically mentions the amount of money to be spent on the ‘infrastructure security compliance’ within the Infrastructure Protection Mitigation Programs budget listing. This is the $105 million figure that I have previously reported. The Report notes (pg 97) that this funding “includes the chemical facility and ammonium nitrate security programs”. Interestingly the Department has yet to produce the first draft of the regulations establishing that ammonium nitrate security program, a program that Congress directed to be in place in 2008. The problem that ISCD is having with the political reviews within the Administration bodes ill for the public consideration that this program will receive when the NPRM is finally published.

Both the explanatory notes (page S9716) and the Senate Report (pg 98) take the unusual step of looking at a specific CFATS SSP review measure. While Congress has specifically denied the Secretary the authority to require specific security measures, Senate would direct the Secretary (under RBPS #9) to “consider whether or not a covered facility has an effective communications mechanism between the facility and local law enforcement and other first responders”. The Report goes into some level of detail about a ‘dedicated telecommunications system’ between the covered facility and the ‘local public safety answering point’. These provisions have undoubtedly been inspired by the problems of public-private emergency communications that have been seen in the many recent chemical release incidents in and around Institute, WV.

Moving Forward

As I mentioned in the prefatory note to this post, it looks like the Omnibus Appropriations Act has been still born. It will be interesting to see if any of this language makes it into the Continuing Resolution that is being developed in the Senate. There is a deadline of Saturday for getting something done. It could include a very short term CR to give people time to draft an intermediate term (February) CR, or it could even end up being a vote to pass the House version of HR 3082.

The open question is how many of these provisions from the deceased Omnibus Appropriations Act will make it into any new Continuing Resolution. There are obviously people on the Senate Appropriations Committee (and perhaps its staff) that really want these measures to be included in an appropriations bill. Since there is an open question about how these provisions might survive in the 112th Congress, the provisions may yet make their way into any legislation funding DHS, no matter what the time fram.

At this point there is no telling what is going to happen.

More Info Coming on Omnibus Budget

One of the web sites that I review nearly every morning is the Daily Digest from the Congressional Record. This is a good summary page of the previous day’s activity in Congress and is usually available first thing in the morning. Yesterday it was not available until well after lunch and I found out why last night. Sen. Inouye (D, HW), the Chairman of the Senate Appropriations Committee is paying the cost of cobbling together this bill outside of normal procedures.

Typically, a bill is introduced, referred to Committee and the Committee favorably reports the bill before it comes to the floor for a vote. In the case of appropriations bills, that report is very important as it adds a much greater level of detail about how the government can spend the money provided by the bill. Since this bill did not go through that process, there is not Committee Report. So Sen. Inouye is being forced to provide the information in the form of ‘explanatory statements’ in the Congressional Record. This is the tool that is typically used to explain the results of a Conference Committee report.

Yesterday, the Congressional Record (for Dec 12th) had over 300 pages of ‘explanatory statements’ for the first three Divisions of the Omnibus Appropriations Act that the Senate will try to substitute for the House version of HR 3082. That 300 page installment did not include the DHS Division (Division F). That should be reported in the Congressional Record that is being delayed today (for yesterday) if they keep to the same 3 Divisions per day schedule.

When they are published, I’ll take a look and see if I can glean any more details about the DHS chemical security spending.

BTW: I’m not a legal scholar or a Senate Rules expert, but I don’t think that the Senate can take up this amendment until all of the ‘explanatory statements’ have been published. At the very least it would make for some interesting subsequent legal arguments about the ‘intent of Congress’.

Chemical Security in Senate Appropriations

Well I had a chance to review the DHS portion (pages 644 thru 747) of the Omnibus Appropriations Act published yesterday by the Senate Appropriations Committee along with a published summary of the DHS portion of that bill. There are significant differences between this bill and S 3607 that was reported this summer by the Senate Appropriations Committee and with the HR 3082 version passed in the House last week.

CFATS Extension

As expected the CFATS authorization is extended in this proposed legislative amendment. The extension is found in §545 (pg 726) though there is a minor technical error in that section. As published it reads:

“Section 550(b) of the Department of Homeland Security Appropriations Act, 2007 (Public Law 109–295; 6 U.S.C. 121 note) is amended by striking ‘on October 4, 2010’ and inserting ‘on October 4, 2011’.”

The minor error is the fact that §550 has been amended twice by continuing resolutions this year and the current expiration date is December 18, 2010. This is the type of error you expect to see in a 1924 page bill that was cobbled together from twelve separate draft bills and then modified to meet current political conditions. Small stuff slips through the cracks.

CFATS Money

The overall funding for DHS is $43.548 billion, a decrease from President Obama’s ($43.890 billion) budget request but an increase over FY 2010 ($42.665 billion) according to Committee DHS summary. Of this the infrastructure protection and information security programs and activities (which includes the Infrastructure Security Compliance Division) would receive $874,923,000 [vs $878,316,000 in HR 3082 passed in the House and $989,342,000 in S 3607].

That is as close as the actual budget language gets to the CFATS program. It is just too small a program to be actually listed in the document. The DHS summary document does note that the above amount would include “$105 million, as requested, to support the coordination and management of regulating high-risk chemical facilities” (pg 3).

Other Programs of Interest

The surface transportation security program at TSA would receive $137,558,000 (pg 662). This would include the folks that deal with the freight rail security program, though I would suspect that the bulk of that money will go to passenger rail and public transport security measures. It specifically includes, according to the summary, money for the “100 new inspectors and 15 Visible Intermodal Protective Response -- “VIPR” -- Teams added in FY 2010” (pg 3).

There will be “$386 million for cyber security, $7 million above the President’s request” (pg 4). The bulk of that money will go to IT programs, but I think that we can assume that ICS-CERT will continue to get its funding; whether there will be an increase in that funding remains to be seen.

The Coast Guard will receive “$8.92 billion (excluding mandatory retirement funding), $142 million above FY 2010 and $200 million above the request” (pg 2). The MTSA program and various hazmat security programs are too small to be mentioned.

The Way Forward

HR 3082 will not come up in the Senate until sometime after the tax cut bill vote is completed (probably today?). It is not clear that there are enough votes to bring this amendment to an actual vote. Many Republicans want to see a short term continuing resolution (45 days) to allow the new Congress to set the spending priorities for the bulk of FY 2011. There may be enough Republican votes from the members of the Senate Appropriations Committee to close debate.

Of course if this amendment is passed in the Senate, then HR 3082 will have to go back to the House. It would probably be approved there; the Democrats can always point to their attempt to reduce spending and the Republican objections effectively don’t count. Of course, if there is any delay or hold up in the process, there will need to be another very short term continuing resolution; the current CR expires Saturday.