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.

Review - CFATS and Congress

Last week, the authorization for the Chemical Facility Anti-Terrorism Standards (CFATS) program expired due to inaction upon the part of the Senate. I have talked about the implications of the program termination, industry support, as well as some about the mechanics of the shutdown. Today, I would like to talk about the process in Congress that resulted in the termination.

HR 4470

On July 6^th, 2023, Rep Lee (R,FL) introduced HR 4470, the Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2023, which would have extended the termination date through September 30th, 2025. That date would have made it possible to add language to Continuing Resolutions and DHS spending bills to further extend the program in a must pass bill. On July 12^th, the House Homeland Security Committee took up HR 4470 and adopted a single amendment that changed the bill’s termination date to July 27^th, 2025. The House approved the bill on July 25^th, by a vote of 409 to 1.

Action in the Senate

On July 26^th, at about 4:00 pm (S3572) when the Senate returned from a short recess, Sen Peters, after a short speech in support of the CFATS program asked for unanimous consent to immediately consider HR 4470. When the Presiding Officer asked if there were any objections, Sen Paul (R,KY) requested to be recognized and said: “I rise today to object to the quick passage of H.R. 4470, which seeks to extend the Chemical Facility.” Paul went on to explain his opposition to passage of the bill. His discussion takes up almost a full page (S3573) of the Congressional record, but the only part that is really applicable to the CFATS program comes early in his discourse:

“This measure, though, which would reauthorize this regulatory program for another 2 years, I think is being rushed through the Senate without due consideration or, really, any consideration at all. The Homeland Security Committee has jurisdiction over the program, yet we have not had any hearings to discuss this program or its effectiveness.”

This is certainly a good point, since there has not been an oversight hearing on the program in either the 117^th or 118^th Congress. Of course, Sen Paul bears some culpability for that fact in the 118th Congress since he is the ranking member of the Senate Homeland Security Committee. While not ‘in charge’ in a closely divided congress he has a larger measure of influence than normally seen in even that Committee. If he had called for a CFATS oversight hearing earlier this year, I suspect Peters would have acquiesced.

But, looking to the end of the speech, we see that Paul really does not have objection to passing HR 4470, what his objection is designed to do is to allow him to request that an amendment unrelated to the CFATS program. That amendment would add language that would establish under 31 USC a process to require the Comptroller General of the United States to analyze certain legislation in order to prevent duplication of and overlap with existing Federal programs, offices, and initiatives. We do not have a copy of his proposed amendment (it was apparently never formally offered so it is not included in the record, but we can see this proposal outlined in S 780, the Duplication Scoring Act of 2023.

This is a common ploy utilized by Paul and a number of other Senators to get less than popular legislation considered. This is one of the major drawbacks to the Senate’s unanimous consent process.

Moving Forward

While the CFATS program is dead, it can still be resurrected. There is another CFATS extension bill (S 2499) that may end up (no language available yet) being the tool used for that resurrection, but no action can be taken on that bill until the Senate comes back from their summer recess on September 5^th. Unfortunately, this will be a low priority for the Senate because the rapidly approaching end of the fiscal year will be driving spending bills and other must pass legislation. The only way that a standalone CFATS bill could make it through the Senate before the end of the fiscal year would be by using the same unanimous consent process that Paul used to push his own less-than-popular agenda with HR 4470.

If there was any chance that an FY 2024 DHS spending bill could make it to the President’s desk before the end of September (see here for my discussion about why that is unlikely) that would be the easiest way to get the CFATS program re-instated.

 

For more information on this process, including a the legislative history of the CFATS program, see my article at CFSN Detailed Analysis - https://patrickcoyle.substack.com/p/cfats-and-congress - subscription required.

HR 4470 Not Considered in Senate 7-26-23 – CFATS Extension Dead?

The Congressional Record for July 26^th, 2023, was just published. HR 4470, the Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2023, was not passed in the Senate yesterday. There is no indication that it was offered (and objected to) under the unanimous consent process. This leaves just one day (today) before the Chemical Facilities Anti-Terrorism Standards (CFATS) program terminates. According to the posts of @SenateCloakroom (that tweets updates on actions taken on the Senate floor) on TWITTER, HR 4470 has not yet been considered on the floor (and the Senate just finished acting on S 2226, the Senate version of the NDAA) and there is little time left for action until the Senate returns to Washington in September.

The actual termination language for CFATS is found in the Notes (Effective and Termination Dates) portion of 6 USC 621 (as added by PL 116–150, §1(a), July 22, 2020, 134 Stat. 679) reads:

“The authority provided under title XXI of the Homeland Security Act of 2002 [6 U.S.C. 621 et seq.], as added by section 2(a), shall terminate on July 27, 2023."

It does not say when the authority will terminate on that day, I will leave it to lawyers to argue that, but certainly by midnight tonight (at the latest) CISA will no longer have authority to conduct operations under the CFATS program. That means that CISA can no longer conduct inspections, require facilities to report, or evaluate data under the provisions of 6 USC 621 et seq. The currently agreed upon site security plans cease to exist as an enforceable requirement and might have to be renegotiated if/when Congress reauthorizes the program.

The authority to pay salaries and expenses is a separate matter. That should continue through September 30^th. Interestingly, the salaries and expenses of the chemical security inspectors does not come directly through the CFATS program office (Office of Chemical Safety). That funding comes from CISA’s Integrated Operations Division (see a post I did about split and another on the potential problems of that dichotomy). CISA with some careful management could keep the CSI on the job without the CFATS program in the new fiscal year, expanding the ChemLock program or helping out overworked Protective Security Advisors.

If the Senate does not act tonight (increasingly likely), then the language of the newly introduced S 2499 becomes very important. The bill could set the clock back to today and re-establish the program as it existed as of one-minute after midnight on July 27^th, 2023. The deadline for action on that bill is probably September 30^th, unless appropriators keep funding for the CFATS program in the DHS spending bill, which would probably require specific language in the bill or spending tables. But there is a good (I know bad choice of words) chance that that bill will never get passed. But that is a bigger problem than the continuation of the CFATS program.

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.