S 2499 Introduced – CFATS Extension

Last month, Sen Peters (D,MI) introduced S 2499, the Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2023. The bill changes the termination date of the Chemical Facility Anti-Terrorism Standards (CFATS) program from July 27^th, 2023, to July 27^th, 2025. The bill was introduced on July 26^th, the day before the program terminated.

The language of this bill is nearly identical to the language of S 2178 except that that the earlier bill would have extended the program through 2028. Peters introduced that bill as well.

Moving Forward

While Peters is the Chair of the Senate Homeland Security and Governmental Affairs Committee, I do not expect that this bill will move forward (see my commentary below).

Commentary

If this bill had passed the Senate and House on July 27^th, it would have saved the CFATS program from termination. But the program did terminate, all of the existing site security plans were no longer enforceable. If this bill were to pass next month when Congress returns from their summer recess, it would start the program all over again, with all of the previously covered facilities having to restart the regulatory process by filing a new ‘initial’ Top Screen.

At this point any legislation to re-instate the CFATS program is going to have to address the termination. It will have to have some sort of language that would re-instate site security plans as of July 26^th, 2023. Since facilities may have allowed some of the security measures to lapse, the bill would have to provide a time period in which each facility would be required to re-instate all security measures outlined in the previously approved site security plan, along with adding a process to request an extension of the reinstatement requirement. Similar language would be needed to address the facilities which had been notified by the Office of Chemical Security that they were covered by the CFATS program but had not yet had their site security plan approved.

Bills Introduced – 7-26-23

Yesterday, with both the House and Senate in session and preparing to depart for their month-long summer recess, there were 134 bills introduced. Two of those bills will receive additional attention in this blog:

HR 4915 To amend title 10, United States Code, to codify the program of the Office of Small Business Programs of the Department of Defense known as Project Spectrum, and for other purposes. Joyce, David P. [Rep.-R-OH-14] 

S 2499 A bill to extend the authorization of the Chemical Facility Anti-Terrorism Standards Program of the Department of Homeland Security. Peters, Gary C. [Sen.-D-MI] 

I am still waiting to see the Congressional Record for yesterday’s meeting to see if HR 4470 was taken up by the Senate. It could be a while as the Senate did not adjourn until after midnight. If HR 4470 did pass, then the introduction of S 2499 does not make much sense. If it did not pass then S 2499 would be a rewrite of S 2178 that would include language to resurrect the CFATS program which will die today if not reauthorized by Congress.

Funding exists for CFATS through September 30^th to keep the staff paid while the program winds down, but authority to take any actions (inspections, approvals, even requiring/accepting Top Screen information) disappeared (will disappear at midnight? I am not sure) if HR 4470 was not passed yesterday. So, a new bill would be required to re-instate the previous authority and provide an extension of the authority through a future date. The chance of S 2178 passing in the Senate and House today or tomorrow are slim (but not impossible) and the current plan is for both bodies to adjourn tomorrow and not return until September 5^th for the Senate and September 12^th for the House. While those plans are always subject to change, it does not look likely at this time.

S 2178 Introduced – CFATS Extension

Last month, Sen Peter (D,MI) introduced S 2178, the Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2023. As expected, this bill is a clean extension of the Chemical Facility Anti-Terrorism Standards (CFATS) program through October 1, 2028.

Moving Forward

While Peters is the Chair of the Senate Homeland Security and Governmental Affair Committee to which this bill was assigned for consideration, it does not appear as if the Committee will hold hearings on the bill. Last week the bill was read the 2^nd time and placed on Senate Legislative Calendar under General Orders. This means that the bill could be considered under the Senate’s unanimous consent process at anytime.

NOTE: There are only ten days until the current CFATS authorization expires.

Review - HR 4470 Mark Up 7-12-23 – CFATS Extension

Yesterday, the House Homeland Security Committee conducted a markup hearing that include consideration of HR 4470, the Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2023. Substitute language was adopted by voice vote. Ten other amendments were offered, but none were agreed to. The Chemical Facility Anti-Terrorism Standards (CFATS) program is currently set to sunset (programmatically die) on July 27^th, 2023.

Substitute Language

The substitute language offered by Rep Lee (R,FL) made a relatively simple change to the ‘is amended by’ language of §2 of the bill, changing “by striking ‘July 27, 2023’ and inserting ‘September 30, 2025’” to read “striking ‘2023’ and inserting ‘2025’." This revised language would mean that the CFATS program would sunset (lacking further congressional action) on July 27^th, 2023 instead of September 30^th. This means that a future extension would again require stand-alone legislation instead of an extension being able to be added to a DHS spending bill or CR.

Moving Forward

Typically, we would have to see a written report published by the Committee before the bill could be considered in the House, but the bill could be reported favorably without a written report which could happen as soon as today. The House could take up this bill under suspension of the rules next week which would still leave time for the Senate to consider the bill under the unanimous consent process before the July 27^th deadline.

 

For details about the amendments that were considered but not approved, see my article at CFSN Detailed Analysis - https://patrickcoyle.substack.com/p/hr-4470-mark-up-7-12-23 - subscription required.

S 2178 – Support for CFATS Program

With just 34 days left until the Chemical Facility Anti-Terrorism Standards (CFATS) program reaches its legislative termination, I admit that I was very happy to see S 2178 introduced earlier this week. I will be happier still when I can see the bill’s language, hopefully early next week. In the meantime, I am going to take a look at two Senate press releases and an industry press release to see what we can figure out about what the bill is going to do.

Industry Press Release

On Friday afternoon, I was notified that the American Chemistry Council had come out in support of the new legislation (that was no surprise). Their web site contains a press release supporting the new bill. The ACC is an industry organization supporting a wide swath of the chemical manufacturers in the United States. They have been long time supporters of the CFATS program, pushing for reauthorization for quite some time.

Unfortunately, there is nothing in their press release that gives any clue to the contents of S 2178.

Senate Press Releases

The first congressional press release that I saw this week on the topic was the one published by Sen Capito’s (R,WV) Office. It provides a brief background on the program and a clear statement about Capito’s support for the program:

“Over the past several years, I have worked so that this program is both authorized and funded at levels to ensure the safety of chemical facilities across this country. By coming together in a bipartisan way, we are demonstrating the importance of our nation’s efforts to support a regulatory framework that strengthens our ability to prevent these facilities from being vulnerable to terrorists,” Senator Capito said.”

There is one piece of actual information about the bill in the press release, the title: Protecting and Securing Chemical Facilities from Terrorist Attacks Act. Not much of a surprise here, this is the same name as the 2014 legislation that last reauthorized the program.

The second senatorial press release came from the office of Sen Peters (D,MI) who is the sponsor of the bill. The bill contains brief statements of support from the three cosponsors {Capito, Sen Carper (D,DE) and Sen Lankford (R,OK)}. Lots of good vibes and support, but not much in the way of information about the provisions of the bill. That is until you get down to the part of the release that provides “statements in support of the senators’ bipartisan legislation”. This portion of the press release provides brief statements made by representatives from a wide selection of chemical manufacturers:

• Dow North America,

• U.S. Chamber of Commerce,

• BASF Corporation,

• Lubrizol Corporation,

• Brenntag North America,

• American Chemistry Council (slightly different than the one discussed above),

• National Association of Chemical Distributors,

• American Fuel and Petrochemical Manufacturers,

• Agriculture Retailers Association, and

• The Fertilizer Institute

Comment Analysis

Some interesting phrases pop up in some of those comments:

• Long-term reauthorization,

• 5-year reauthorization,

• Clean reauthorization,

• 5-year clean extension.

Long-term reauthorization has long been a goal of industry. It provides industry with a certain amount of certitude that the long-term investments that they continue to make in security measures will continue to support the program requirements. Unfortunately, politicians often prefer a shorter extension, because it allows them to meddle with the programs which they can generally only do during reauthorization. The regulators also prefer longer term reauthorization, since it allows them to refine their processes without having the politicians foisting off major changes on them.

The term ‘clean reauthorization’ is a vaguely defined technical term. In its purest sense ‘clean’ means no changes to the program. It takes no great insight to see why industry would like that, no legislative changes means no regulatory changes, which of course means no new spending by industry to make changes. The term in practice means no significant changes are made to the program, its hard to keep politicians from tweaking.

Unfortunately, it is hard to know if these commentors have actually seen the language in the proposed legislation, or they are mentioning what they want to see, or something in between. The best I can do is to note that industry appears to expect a 5-year clean extension of the CFATS program. We will have to see when the bill is published.

Bills Introduced – 6-22-23

Yesterday, with both the House and Senate in session, there were 191 bills introduced. Six of those bills may receive additional coverage in this blog:

S 2103 An original bill to authorize appropriations for fiscal year 2024 for intelligence and intelligence-related activities of the United States Government, the Intelligence Community Management Account, and the Central Intelligence Agency Retirement and Disability System, and for other purposes. Warner, Mark R. [Sen.-D-VA] 

S 2127 An original bill making appropriations for military construction, the Department of Veterans Affairs, and related agencies for the fiscal year ending September 30, 2024, and for other purposes. Murray, Patty [Sen.-D-WA]

S 2131 An original bill making appropriations for Agriculture, Rural Development, Food and Drug Administration, and Related Agencies for the fiscal year ending September 30, 2024, and for other purposes. Heinrich, Martin [Sen.-D-NM] 

S 2153 A bill to provide for the use of members of the Selected Reserve and Individual Ready Reserve to respond to significant cyber events. Peters, Gary C. [Sen.-D-MI]

S 2178 A bill to extend the Chemical Facility Anti-Terrorism Standards Program of the Department of Homeland Security, and for other purposes. Peters, Gary C. [Sen.-D-MI] 

S 2201 A bill to increase knowledge and awareness of best practices to reduce cybersecurity risks in the United States. Klobuchar, Amy [Sen.-D-MN] 

I will be covering S 2103, S 2153, and S 2178. A special note on S 2178, the Chemical Facility Anti-Terrorism Standards (CFATS) program will terminate on July 27^th, 2023, unless it is reauthorized by Congress. S 2178 is the first bill introduced in either the 117^th or 118^th Congress that would reauthorize the program.

I will be watching the two spending bills, S 2127 and S 2131, for language addressing cybersecurity issues, particularly those addressing control system issues.

I will be watching S 2201 for language and definitions that include control system cybersecurity risks within the scope of the legislation’s requirements.

Mentioned in Passing

There are three bills that I would like to mention in passing:

HR 4310 To ban the sale of products with a high concentration of sodium nitrite to individuals, and for other purposes. Rep. Trahan, Lori [D-MA-3]

H Res 537 Amending the Rules of the House of Representatives to clarify that the payment of a bail bond constitutes a gift for purposes of the Rules.  Rep. Cohen, Steve [D-TN-9]

S 2168 A bill to rescind discretionary appropriations in the event of a debt ceiling crisis period and to honor the full faith and credit of the debts of the United States in the event of a debt ceiling crisis. Braun, Mike [Sen.-R-IN]

RE HR4310 - In trying to figure out why Trahan would want to see sodium nitrate sales banned leads to two possibilities, sodium nitrate capsules are being used as poison for feral hogs (there is a certain level of appropriateness in that) and there has apparently been an increase in the number of individuals that use sodium nitrate as a poison for suicide.

RE H Res 537 – This is a further attempt to deal with the ‘Santos’ problem in Congress. Making bail bond payments gifts would require a congress critter to report them to the Ethics Committee.

RE S 2168 – This is a radical ‘solution’ to the debt limit ceiling problem. It would (really?) keep the financial community happy because debt service payments could continue to be made while Congress dithered. It would also protect military pay, Social Security checks, and other mandatory spending.