Review – HR 128 Introduce – Fentanyl as WMD

Last month, Rep Boebert (R,CO) introduced HR 128, the Fentanyl is a WMD Act. The very short bill would direct the Countering Weapons of Mass Destruction Office of the Department of Homeland Security to treat illicit fentanyl as a weapon of mass destruction. No funding authorization is provided in this legislation.

HR 128 is identical to HR 7190 that was introduced by Boebert in February of last year. No action was taken on that bill.

Moving Forward

While Boebert is not a member of the House Homeland Security Committee to which this bill was assigned for consideration, this session one of her eight cosponsors {Rep Ogles (R,TN)} is a member. This means that there may be sufficient influence to see the bill considered in Committee. I would expect there to be significant bipartisan opposition to the bill were it to be considered, but there could be enough votes for the Committee to favorably recommend the bill to the full House.

Commentary

While fentanyl may broadly fall within the scope of the definition of the term ‘weapon of mass destruction’, there is nothing within the current scope or mission of the Countering Weapons of Mass Destruction Office that would help the federal government reduce the flow of that drug, or it’s precursors, into this country. Either the sponsors of this bill are unaware of the mission of the CWMD Office, or this legislation is just another bit of political grandstanding. In my opinion, while I would not be surprised at these particular congresscritters being uniformed, I suspect the latter.

 

For more information about the provisions of this bill, including additional commentary on future of the CWMD Office, see my article at CFSN Detailed Analysis - https://patrickcoyle.substack.com/p/hr-128-introduce - subscription required.

Bills Introduced – Week of 5-6-23

VACATION DELAYED

This week with both the House and Senate in Washington, 314 bills were introduced. Eight of those bills may receive additional attention in this blog:

HR 3147 To establish a defense industrial base advanced capabilities pilot program. Houlahan, Chrissy [Rep.-D-PA-6]

S 1493 A bill to amend title V of the Public Health Service Act to secure the suicide prevention lifeline from cybersecurity incidents, and for other purposes. Sinema, Kyrsten [Sen.-I-AZ] 

S 1500 A bill to amend the Help America Vote Act of 2002 to require the Election Assistance Commission to provide for the conduct of penetration testing as part of the testing and certification of voting systems and to provide for the establishment of an Independent Security Testing and Coordinated Vulnerability Disclosure Pilot Program for Election Systems. Sen. Warner, Mark R. [D-VA]

HR 3169 To require the inspection of certain foreign cranes before use at a United States port, and for other purposes. Gimenez, Carlos A. [Rep.-R-FL-28]

S 1526 A bill to amend the National Telecommunications and Information Administration Organization Act to establish the Office of Policy Development and Cybersecurity, and for other purposes. Hickenlooper, John W. [Sen.-D-CO]

HR 3208 To amend the Homeland Security Act of 2002 to establish a DHS Cybersecurity On-the-Job Training Program, and for other purposes. Jackson Lee, Sheila [Rep.-D-TX-18]

HR 3224 To amend the Homeland Security Act of 2002 to extend the authorization of the Countering Weapons of Mass Destruction Office of the Department of Homeland Security, and for other purposes. D'Esposito, Anthony [Rep.-R-NY-4]

S 1560 Rural Hospital Cybersecurity Enhancement Act Hawley, Josh [Sen.-R-MO]

I will be covering HR 3208, HR 3224, and S 1526.

I will be watching the remaining bills for language and definitions that specifically include control system or medical device cybersecurity requirements within the scope of the legislation.

Committee Hearings – Week of 07-12-15

Both the House and Senate will be working in Washington this week. There is lots of different stuff on the agenda as the summer recess approaches. Hearing of specific interest to readers of this blog will include:

∙ Homeland Security spending bill markup;

∙ Oversight hearings on DHS and PHMSA;

∙ WMD control;

∙ CSB nomination; and

∙ S 1732 markup.

DHS Spending

The House Appropriations Committee will be marking up the FY 2015 DHS spending bill on Tuesday. A copy of the bill approved last week by their Homeland Security Subcommittee is available as is a copy of the draft report for the bill. This bill will almost certainly be introduced later this week.

DHS Oversight

The House Judiciary Committee will be holding an oversight hearing on Tuesday. The only witness will be Secretary Johnson. I doubt that there will be much mention of chemical security or surface transportation security at this hearing, but you never can tell.

PHMSA Oversight

The Energy and Power Subcommittee of the House Energy and Commerce Committee will be holding an oversight hearing on the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011 and related issues on Tuesday. Some of the witness testimony is already available. The witness list includes

∙ Dianne Black, County of Santa Barbara, California;

∙ Ron Bradley, PECO Energy;

∙ Stacy Cummings, Interim Executive Director, PHMSA;

∙ Donald Santa, Interstate Natural Gas Association of America;

∙ Carl Weimer, Pipeline Safety Trust; and

∙ Stan Wise, Georgia Public Service Commission

There have been some congressional complaints about how quickly PHMSA has been implementing the requirements of the 2011 bill. Expect to see some adversarial questioning of the relatively new Interim Executive Director.

WMD Hearing

There will be a joint hearing by two subcommittees of the House Homeland Security Committee on Tuesday on “Weapons of Mass Destruction: Bolstering DHS to Combat Persistent Threats to America”. The current witness list includes DHS representatives from Office of Health Affairs, S&T and the Nuclear Detection Office. There are two non-governmental witnesses:

∙ Alan D. Cohn, Steptoe & Johnson, LLP; and

∙ Rick "Ozzie" Nelson, Center for Strategic and International Studies

According to the Committee website the hearing “will review the Department of Homeland Security’s (DHS) proposal to consolidate certain weapons of mass destruction (WMD) and explosives defense activities at DHS headquarters to ensure America is prepared to combat these threats.”

CSB Nomination

The Senate Environment and Public Works Committee will be holding a nomination hearing on Wednesday. Of the two nominees being considered readers of this blog will probably be most interested in Kristen Kulinowski to be a Member of the Chemical Safety Board. Kulinowski is a chemist with expertise in nanomaterial safety.

S 1732 Markup

The Senate Commerce, Science, and Transportation Committee will be holding a markup hearing on S 1732, the Comprehensive Transportation and Consumer Protection Act of 2015, on Wednesday. This bill was introduced on Friday and the bill has not yet been published by the GPO but the Committee does have a committee print available. A quick look at the table of contents indicates that there may be numerous provisions of interest to readers of this blog; expect a review from me before Wednesday’s hearing.

Congressional Hearings – Week of 5-4-14

It is going to be a busy week for hearings on both sides of Capitol Hill. There are five House hearings and two Senate hearings currently scheduled that may be of specific interest to readers of this blog, two transportation hearings, two WMD related hearings and three cybersecurity hearings.

Transportation

The Transportation, and Housing and Urban Development, and Related Agencies Subcommittee of the House Appropriations Committee will hold a markup hearing on the THUD spending bill for FY 2015. That spending bill is not normally introduced until after this hearing so we can’t tell for sure what will be in it. I would bet, however, that there will be language related to crude oil trains included in the bill.

The Senate Commerce, Science and Transportation Committee will be holding a hearing on the reauthorization of the Surface Transportation Act. Again, lots of transportation safety issues will be discussed, but a big topic will be crude oil rail shipments.

WMD

The Europe, Eurasia, and Emerging Threats Subcommittee of the House Foreign Affairs Committee will be holding a hearing on Wednesday looking at “Assessing the Biological Weapons Threat: Russia and Beyond”. Well, Russia certainly can be expected to have the technological where-with-all to produce bio-weapons so this is probably a reasonable hearing topic. Witnesses include:

• David R. Franz, USAMRIID; and

• Amy Smithson, James Martin Center for Nonproliferation Studies;

The Cybersecurity, Infrastructure Protection, and Security Technologies Subcommittee of the House Homeland Security Committee will be holding a hearing on Thursday looking at “Electromagnetic Pulse (EMP): Threat to Critical Infrastructure”. This hearing was originally schedule on 2-26-14. Still no witness list.

Cybersecurity

The House Armed Services Committee will conduct a full committee markup of HR 4435, the FY 2015 NDA, on Wednesday. After a round of subcommittee markups last week there still does not appear to anything mentioning cybersecurity or cyber warfare in the bill. That may change at this markup.

The Homeland Security Subcommittee of the Senate Appropriations Committee will be holding a hearing on Wednesday looking at “Investing in Cybersecurity: Understanding Risks and Building Capabilities for the Future”. This will almost certainly focus on Federal IT systems, but control systems may get mentioned. The witness list includes:

• Phyllis Schneck, Cyber, National Protection and Programs Directorate, DHS;

• William Noonan, Homeland Security Investigations, Immigration and Customs Enforcement, DHS;

• Jonathan Katz, Maryland Cybersecurity Center, University of Maryland;

• Dave Mahon, CenturyLink;

• Scott R. Bowers, Indiana Statewide Association of Rural Electric Cooperatives

• Christopher Peters,  Entergy Corporation

There will be a joint hearing on Thursday with two Homeland Security subcommittees looking at “Assessing Persistent and Emerging Cyber Threats to the U.S. Homeland”. Again I suspect an IT-centric focus, but you never can tell.

House Floor

There is nothing currently scheduled for the House floor this week that will be of specific interest to readers of this blog.

Witness Statements Available for WMD Budget Hearing

The House Armed Services Committee has already posted the witness statements for tomorrows hearing on the WMD budget for Defense Threat Reduction Agency and the Chemical Biological Defense Program that I mentioned in this morning’s blog post.

The testimony can be found at the following links:

• Rebecca K. C. Hersman;

• Kenneth Myers;

• Carmen Spencer; and

• Andy Weber

NOTE: The ‘first’ entry for ‘Witness Biography’ for Weber is actually the link to the ‘Witness Testimony’.

HR 4034 Introduced – WMD

As I noted almost two weeks ago Rep. Pascrell (D,NJ) introduced HR 4034, the WMD Prevention and Preparedness Act of 2014. This bill is nearly identical to the version of HR 2356 reported out of the House Homeland Security Committee in the last session of Congress and very similar to HR 5057 from the 111^th Congress.

As has been usual for these bills, the focus is on biosecurity issues not chemical issues. There are some provisions that mention chemicals and could be interpreted to cover both accidental and deliberate releases, but those provisions still mainly refer to biosecurity not chemical security.

Neither the Senate nor the House has been able to move a bill to the floor even though it has been a high-priority for the respective chairs of those committees. Being introduced this late in the session, there is a very low likelihood that the bill will be considered on the floor of the House.

Bills Introduced – 02-11-14

There were 49 bills introduced in the House and Senate yesterday and only one of those might be of specific interest to readers of this blog:

HR 4034 Latest Title: To enhance homeland security by improving efforts to prevent, protect against, respond to, and recover from an attack with a weapon of mass destruction, and for other purposes. Sponsor: Rep Pascrell, Bill, Jr. (D,NJ)

I suspect that this will be similar to HR 2356 from the 112^th Congress. That bill was reported by the House Homeland Security Committee (and discharged from the other committees to which it was assigned), but it never actually made it to the floor.

It is odd that this is being introduced so late in the 113^th Congress and it only has one co-sponsor, Rep. King (R,NY).

Congressional Hearings – Week of 7-21-13

There are only three House hearings and one Senate hearing that might be of specific interest to the chemical safety/security and cybersecurity communities. They involve a TSA markup, a rule for two spending bills, a transportation bill and a cybersecurity bill. A WMD bill will also be considered on the floor of the House.

Spending Bills

The House Rules Committee will meet this evening to try again to formulate a rule for the consideration of HR 2610 (FY 2014 DOT spending bill) and HR 2397 (FY 2014 DOD spending bill). The big holdup here is the question of whether or not to have an open rule (which the Republican leadership has made the norm for spending bills) for the DOD bill. There is a great deal of concern about an amendment defunding the NSA over the recent cyber-snooping disclosure about that agency.

Apparently there has been a resolution as to handle the DOD bill because the Majority Leader’s web site reports that HR 2397 will be considered this week.

TSA Markup

The Subcommittee on Transportation Security of the House Homeland Security Committee will be holding a markup hearing on Wednesday. One of the bills to be considered will be HR 1204, the Aviation Security Stakeholder Participation Act of 2013.

Transportation

Friday there will be a field hearing in New York City by the House Transportation and Infrastructure Committee’s Panel on 21^st Century Freight Transportation looking at “How Freight Transportation Challenges in Urban Areas Impact the Nation”. There is no witness list yet available so it is hard to tell what might be discussed. Always a possibility is the issue of the risk of hazmat trains transiting urban areas.

Cybersecurity

The Senate Commerce Committee will be holding a hearing on Thursday looking at “The Partnership Between NIST and the Private Sector: Improving Cybersecurity”. This should be another feel good hearing about the Cybersecurity Framework being developed by NIST under the President’s Cybersecurity EO (EO 13636). No witness list is yet available, but we can expect to see the NIST Director.

WMD Intelligence

There will also be a House floor vote on HR 1542, the WMD Intelligence and Information Sharing Act of 2013. This bill will be considered under suspension of rules so there will be no floor amendments allowed. There was no committee markup of this bill so there was no chance to add the industrial chemical amendment that I suggested. This bill will pass in a bipartisan vote later today.

National Radiological and Nuclear Detection Challenge

Okay, I’m not making this up. Today the DHS Domestic Nuclear  Detection Office published a notice in the Federal Register (78 FR 26795-26798) announcing the National Radiological and Nuclear Detection (Rad/Nuc) Challenge to be held in August 20-22, 2013 at the I.G. Brown Air National Guard Training and Education Center, Alcoa, Tennessee.

Rad/Nuc Challenge

According to the notice:

“The Rad/Nuc Challenge will consist of a competitive RND search exercise held over a three-day period. The competition is designed to develop and recognize enhanced RND search skills, train on the use of various pieces of RND equipment, and influence vendors and developers to adapt and improve RND equipment capability and suitability for field use.”

The notice describes who may participate in the challenge, how to register to compete, how the winners will be selected, and what the winners will receive. It also explains the two events included in the challenge; the Maze, and the Container Search. There will also be a commercial exhibition of RND technology associated with this challenge.

Commentary

Yes, the business of detection of radiological and/or nuclear devices is a deadly serious business. Yes, competitions are an excellent method of encouraging and evaluating the building of team skills. But to elevate this to a level that requires a three page Federal Register notice? Are they serious?

Okay, let’s assume that they are serious and this isn’t some massive prank executed by hackers targeting the Government Printing Office. That means that there are some [SARCASM WARNING] serious violations of federal law being executed here. I mean, where was the information collection request for the forms to be used to collect the registration information? Where is the public publication and comment period on the rules for the competition? Where is the Presidential appointment and Senate advice and consent of the judges?

All sarcasm aside; where is the money coming from for funding this exercise. If, as I hope, it is coming from voluntary contributions from the private sector, I’m all for this and let the games begin. If the money is coming, as I suspect, from federal coffers then I want an accounting for the number of federal employees that could have had their sequester furloughs canceled if this challenge did not go forward.

Congressional Hearings – Week of 4-21-13

With a terrorist attack and a catastrophic chemical accident still dominating the domestic news Congress returns to Washington to look at more mundane matters including freight transportation and the FY 2014 budget. Two security related hearings will be held looking at cybersecurity and weapons of mass destruction.

Budget Related Hearings

• Federal Railroad Administration Budget, House Appropriations, 4-25-13;

• Oversight of the President's Fiscal Year 2014 Budget Requests for Coast Guard and NOAA, Senate Commerce, 4-23-13; and

• FY 2014 Budget Request for the Department of Homeland Security, Senate Appropriations, 4-23-13

Freight Transportation

On Wednesday the Panel on 21st Century Freight Transportation (not a subcommittee, maybe a temporary subcommittee) will hold a hearing on the Overview of the United States’ Freight Transportation System. According to a Panel document, they will be looking at the ‘system’ from an intermodal perspective. There is no specific mention of hazardous material shipping in that document, nor shipping security, but the topics may come up

The witness list includes:

• Fred Smith, FedEx Corporation

• Charles W. Moorman, Norfolk Southern Corporation

•  James Newsome, South Carolina Ports Authority

• Derek Leathers, Werner Enterprises

• Edward Wytkind, Transportation Trades Department, AFL-CIO

Weapons of Mass Destruction

The Counterterrorism and Intelligence Subcommittee of the House Homeland Security Committee will be holding a hearing on Counterterrorism Efforts to Combat a Chemical, Biological, Radiological, and Nuclear (CBRN) Attack on the Homeland. This hearing was originally scheduled for April 11^th. The witness list remains the same as I reported earlier.

Cybersecurity

The Cybersecurity, Infrastructure Protection and Security Technologies Subcommittee of the House Homeland Security Committee will be holding a hearing on Thursday on Striking the Right Balance: Protecting Our Nation's Critical Infrastructure from Cyber Attack and Ensuring Privacy and Civil Liberties. It is odd that this hearing is coming after the House passage of CISPA, but that doesn’t appear to be the end of cybersecurity legislation. No witness list is currently available.

Action on the House Floor

There is only one bill that is currently scheduled to come to the floor of the House this week that even remotely concerns chemical safety matters (much less security of any kind) and that is H.R. 527, the Responsible Helium Administration and Stewardship Act. It will be debated under a Rule on either Thursday or Friday. I haven’t covered this bill and I probably won’t mention it again.

WMD Hearing Update

The House Homeland Security Committee has provided additional information on their upcoming hearing on WMD that I reported on Sunday; a witness list has been provided. The witnesses include:

• Mr. Richard Daddario, Deputy Commissioner for Counterterrorism, NYC PD;

• Dr. Huban Gowadia, Acting Director, DHS Domestic Nuclear Detection Office
• Mr. Scott McAllister, Deputy Under Secretary, State and Local Program Officer, DHS Office of Intelligence and Analysis; and
• Dr. Leonard Cole, Newark, New Jersey

The first three will serve as the first panel and it looks like their focus will be essentially an unclassified intelligence update with perhaps an update on the status of the DNO detection program and the NYC WMD prevention program. Dr. Cole is an odd single panel witness he is both a medical doctor (dentistry) and a political science professor (Rutgers-Newark) and is a recognized expert on bioterrorism. So once again the Committee is ignoring the industrial chemical component of the WMD threat.

Congressional Hearings – Week of 04-07-13

The House and Senate come back to Washington this week refreshed from their two week Easter Recess. There are a large number of hearings that will be conducted this week. Part of that is driven by the fact that the President releases his FY 2014 budget request tomorrow; a bunch of people are going to the Hill to explain what the President wants and why. Budget hearings will be in the news for the next couple of weeks while the two authorization committees get to work on their FY 2014 spending plans.

Budget Hearings

There will be four separate budget hearings of potential interest to readers of this blog, three of them for their potential coverage of cybersecurity issues and the fourth will potentially address cybersecurity, chemical security and safety, port and transportation security and emergency response. Actually, I don’t expect detailed mention of any of the above, but we will probably here some general policy statements. I am including the Commerce hearing because of the NIST role in the the Presidents cybersecurity EO. The four hearings are

The Fiscal Year 2014 National Defense Authorization Budget Request from the Department of Defense; House Committee on Armed Services; Thursday, April 11, 2013 (10:00 AM - 1:00 PM)

Department of Homeland Security Budget; Subcommittee on Homeland Security (House Committee on Appropriations); Thursday, April 11, 2013 (10:00 AM)

The Department of Commerce’s Fiscal Year 2014 Budget Request; Commerce, Justice, Science Subcommittee (Senate Appropriations Committee); Thursday, April 11, 2013, 10:00 a.m.,

Counterterrorism and WMD

The Counterterrorism and Intelligence Subcommittee of the House Homeland Security Committee will be holding a hearing on Thursday on Counterterrorism Efforts to Combat a Chemical, Biological, Radiological, and Nuclear (CBRN) Attack on the Homeland. No witness list is yet available. This is not currently being billed as a hearing on a specific bill, but I suspect that we will see the perennial introduction of a “WMD Prevention and Preparedness Act” this week and this will serve as the opening round of hearings to support that bill.

TSA and Risk-Based Security

The Transportation Security Subcommittee of the House Homeland Security Committee will be holding a hearing on Thursday on TSA’s Efforts to Advance Risk-Based Security: Stakeholder Perspectives. No witness list is available. As with most TSA hearings I suspect that this will concentrate on passenger security, but cargo security just might get mentioned.

Sequestration

I almost included this in the budget hearing section of this post, but this is probably even more political theater than those hearings so I’m keeping it separate. The Oversight and Management Efficiency Subcommittee of the House Homeland Security Committee will be holding a hearing on Friday on The Impact of Sequestration on Homeland Security: Scare Tactics or Possible Threat? No witness list is currently available. There is no telling what part of homeland security might get discussed here.

CISPA Markup

There has been a lot of talk in the press over the last week or so about a markup hearing on the CISPA bill (HR 624, the Cyber Intelligence Sharing and Protection Act) being held behind closed doors this coming week. There is nothing on the House Intelligence Committee web site that would indicate that there is a markup scheduled on this bill.

Now, I would not be surprised to hear that there were unofficial meetings about the amendments that will be proposed for this bill when it comes to a markup. This is one of those committees that tries to form a bipartisan consensus on important legislation and if CISPA is going to have any chances of reaching the President, it will have to have lots of bipartisan support. Given the controversial nature of the bill, the only way that this is going to be achieved is if there is some serious deal making on the provisions of the bill. That deal making always happens behind closed doors.

There seems to be a consensus that this bill will make it to the floor of the House this month. That means that there will need to be a committee markup sometime this week or next.

Lame Duck Congressional Hearings – Week of 11-12-12

Well the election is over and the 112^th Congress is coming back to Washington to catch up on some of the work they couldn’t get done, for a variety of reasons, before the election. There are a large number of important topics on their plate to be dealt with in their limited time left in office yet they still have time to conduct hearings on topics that have already been talked to death.

One such topic is Weapons of Mass Destruction (maybe it should be all caps, if you listen to the rhetoric). This coming week the Subcommittee on Counterterrorism and Intelligence of the House Homeland Security Committee will be holding a hearing on “WMD Terrorism: Assessing the Continued Homeland Threat” on Thursday. No witness are currently listed on Committee web site. It is not currently listed as a closed hearing so there will be no real update of intelligence information presented.

The Chair of the Subcommittee, Rep. Meehan (R,PA), is one of the co-authors of HR 2356, the WMD Prevention and Preparedness Act of 2011, that was reported just before the extended election break, so there doesn’t seem to be much of a legislative reason for conducting this hearing unless the testimony is expected to provide additional information to support a House vote on the pending bill during the lame duck session. There has been bipartisan support for this bill, but action is still ‘pending’ on this bill in four other committees with a 'deadline' for their action of November 30^th. It might take a WMD to actually get this bill to the floor.

OMB Approves Two Bioterrorism Rules

On Friday the Office of Management and Budget approved two rules dealing with the US bioterrorism prevention program, one from HHS/CDC and the other from USDA. Both rules deal with the biennial review of select agents and toxins.

Select Agent and Toxin List

The USDA rule would amend and republish the list of select agents and toxins that have the potential to pose a severe threat to animal or plant health, or to animal or plant products. It based on the relative potential of each select agent or toxin to be misused to adversely affect human, plant, or animal health implements the findings of the third biennial review of the list. The rule reorganizes the list based on the relative potential of each select agent or toxin to be misused to adversely affect human, plant, or animal health. This tiering of the list would allow for the risk-based structuring of security measures.

Security Measures

The HHS/CDC rule also updates the Select Agent and Toxin list based upon an interdepartmental review. It also implements the requirements of EO 13546, Optimizing the Security of Biological Select Agents and Toxins (BSAT) in the United States, to review, tier, and reduce the Select Agent List; establishing personal reliability standards for BSAT workers; and establishing physical security standards for identified Tier 1 select agents and toxins.

Not Homeland Security Related

The OMB makes one of the silliest statements that I have seen in a government publication in a long time in their action notice for each of these rules (HHS/CDC and USDA). On their standard notification format there is a question to be answered by OMB; “Related to Homeland Security”. In both instances the answer is “No”. The whole purpose of these two rules is to ensure that no one steals or diverts any of the select agents or toxins to be used as terrorist weapons. This is clearly established in  §3(a) of the Executive Order: “The use of BSAT presents the risk that BSAT might be lost, stolen, or diverted for malicious purpose.” And what better malicious purpose than a terrorist WMD attack.

The only thing that I can figure is that someone at OMB is making a simplistic response to that question; since the rule was not filed by DHS, then it couldn’t be related to Homeland Security. Needless to say that would be the height of bureaucratic simplemindedness. Hopefully this mistake was one made by an administrative minion not someone with decision making authority.

Moving Forward

Both rules were approved ‘Subject to Change’ so I suspect that there will be a little time lag for those ‘minor corrections’ required by OMB to be made to the documents. Typically these take a couple of weeks, but that would mean that they would be published in the Federal Register during the ‘October Surprise’ period of a presidential campaign. If the politicians at the White House feel that there is anything even slightly controversial in these rules, I would suspect that they would be further delayed until after November 6^th; no sense giving the opposition any unnecessary ammunition in a very close election.

BTW: I hope that HHS/CDC does a better job of writing risk-based security performance standards than DHS/ISCD did.

Homeland Security Markup Results

Yesterday’s markup hearing before the House Homeland Security Committee ended with four bills ordered to be reported favorably to the House. Unusual in this Congress is the fact that three of the four bills were adopted by unanimous consent and the fourth by a voice vote; making these bills poster children for bipartisan support.

The four bills are:

HR 2356, WMD Prevention and Preparedness Act of 2011;

HR 3173, TWIC renewal;

HR 3857, Public Transit Security and Local Law Enforcement Support Act; and

HR 4005, GAPS Act.

Typically when you see four bills covered in a single hearing like this at least two or three of them are passed without additional action. In each of these pieces of legislation there was at least one amendment (HR 3173) offered and adopted. In fact, there were a total of 14 amendments adopted and one was defeated. All but one of the adopted amendments were approved by either ‘unanimous consent’ or a voice vote.

Still nothing in any of these bills that directly affects chemical facility security, but there are a couple of interesting amendments that deserve a second look.

GAPS Act

The Committee did not take my suggestion about avoiding over-classification of the ‘gaps’ report. Rep. Clarke (D,NY) and Rep. Jackson-Lee (D,TX) stood mute on the subject leaving Rep. Sanches (D,CA) to address the issue. Rather than trying to reduce the designation to the legally specified PCII, Ms. Sanchez’ amendment added a new section to the bill requiring that the Secretary to share “relevant information regarding remaining gaps in port security of the United States” {§3}. Recipients should include government agencies as well as ‘port system owners and operators’.

The new section goes on to address the security clearance issue by requiring the Secretary, when appropriate, to “help expedite the clearance process”. This looks like a workable solution until you realize that there will only be a limited number of people that will be getting these clearances in any organization and sharing classified information within the organization is forbidden. Additionally, the physical security requirements for storing classified information (including approval and periodic inspection requirements) will ensure that many organizations that might need access to this information will not be able to get it.

TWIC Renewal

Rep. Sanchez was also responsible for sole amendment to HR 3173. It added another complaint about the current TWIC situation to the findings in §1; the delay in issuing rules for the use of TWIC Readers. This led to a subsequent addition to §2 that it is the ‘Sense of Congress’ that the Secretary should promulgate final TWIC Reader rules “as soon as practicable” {§2(2)}. Why anyone thinks that a ‘as soon as practicable’ requirement will carry any more weight than the original two year time limit is completely beyond me.

There is one additional part to this amendment that may have a practical effect. Section 2(3) extends the expiration of any Port Security Grants that have been awarded for TWIC projects. Such awards would not expire “before the issuance of the final TWIC reader rule”. Unfortunately the staffers need to go back and learn some grammar; this could allow those grants to expire on the date the TWIC Reader rule is published in the Federal Register. I would have suggested that the end of this subparagraph would read “before a period of six months has passed after the effective date of the final TWIC Reader rule.

Republicans Loose Vote

I don’t have much interest in HR 3857; I don’t live in a city with a real public transit system and these systems (where they do exist) do not directly service high-risk chemical facilities. But, it is interesting to note that on the only roll call vote of the hearing the Chairman was on the losing end of the vote and the Ranking Member was on the winning side. Rep. Cuellar (D,TX) proposed an amendment that would require grant recipients for the new ‘specialized patrol teams’ must submit a “sustainment plan for maintaining in future years the capability or capacity achieved with the grant funds”. A bipartisan majority over-rode the chairman; it doesn’t happen often, but when it does its worth looking at.

Moving Forward

It seems that there is little or no reason that these four bills wouldn’t pass if they reach the floor of the House. I don’t see any real reason why they couldn’t pass easily in the Senate as well. It all depends on the legislative inertia; if the leadership doesn’t move on these they languish as so many bills do during an election year.

Congressional Hearings – Week 5-8-12

The House and Senate come back to Washington this week. Two different committees will work on spending bills for DHS and a number of security related bills will be marked up in the House. The full House will consider a spending bill that could have cybersecurity provisions.

DHS Budget Hearings

Wednesday morning the Senate Appropriations Committee’s Homeland Security Subcommittee will hold a hearing to look at the President’s FY 2013 funding request for the Coast Guard. Adm. Papp, the Commandant, will be the sole witness.

Over in the House, at about the same time, the House Homeland Security Subcommittee will be marking up their FY 2013 DHS spending bill. A copy of the bill to be marked up will not be available until after both the subcommittee and the full committee have done their markups and reported the bill.

Security Related Markups

The House Homeland Security Committee will hold a markup hearing on Wednesday, looking at four separate bills. Three of the bills have some relationships to chemical security issues. They are:

• HR 2356, WMD Prevention and Preparedness Act of 2011;

• HR 3173, TWIC Processing; and

• HR 4005, Gauging American Port Security Act

The WMD act looks like it will finally get its time in the sun. There will be an amendment in the nature of a substitute (ANS) offered by Chairman King. This is the same ANS that would have been considered back in February when the markup was previously scheduled. The bill concentrates on biohazards, the personal bête noir of Chairman King. Even the Metropolitan Medical Response System reauthorization contained in the does nothing to direct planning for a response for an attack on a chemical facility.

The TWIC processing bill was introduced last year and almost immediately added to HR 3116, the FY 2012 DHS Authorization bill, in the full committee markup of that bill. Since that bill has died a death of quiet neglect (yet again) the Committee will now try to get this bill passed on its own right. In an effort to make it easier for legitimate port workers to get their TWIC issued or renewed, the provisions of the bill will probably reduce the security of the documents according to the GAO.

The GAPS bill will add another study to the long list of ignored studies conducted by DHS. The bill requires the report to be classified, ignoring the rules for protecting port security information; just another classified report to gather dust.

All three bills will certainly be passed in committee, probably with some measure of bipartisan support. If/when they come to the floor of the House they will all probably pass there as well.

Other Spending Bills

The House will vote on two (maybe three) spending bills this week according to the House web site HR 5326, the appropriations bill for Commerce and Justice will be considered this week under rule (Rules Committee Hearing on Monday). There isn’t much in the actual bill about cybersecurity, but the Appropriations Committee Report briefly describes the FBI setting up cybersecurity equivalents of Joint Terrorism Task Forces. I’ll watch this for more cybersecurity coverage.

Two bills (one unnumbered as of today and HR 4966) would attempt to bypass some or all of the sequester provisions of last year’s spending bill will be considered this week. There is only a slim chance that security provisions could be included in the bills.

WMD Markup Postponed

The House Homeland Security Committee posted a brief note on their web page yesterday that the markup hearing scheduled for today has been postponed to a date and time to be announced. Readers will recall that this hearing was supposed to include a markup of HR 2356, the WMD Prevention and Preparedness Act of 2011. No reason has been given for the postponement.

HR 2356 Substitute Language

As I noted in my congressional hearing blog post this weekend the House Homeland Security Committee will be marking up HR 2356, the WMD Prevention and Preparedness Act of 2011. The Committee Chair, Rep King (R,NY), will be offering an amendment in the nature of a substitute and that will be the basis for the bill that will ultimately be approved by the Committee.

I have now had a chance to take a fairly close look at the substitute language. As is typical with these amendments, the vast majority of the changes are fine tuning the wording of the bill. There were some wholesale deletions of material, a few minor additions and one section was entirely re-written. None of the changes substantially change the almost paranoid focus of the bill on countering biological attacks on the United States. The bill still essentially ignores the most probable form of WMD attack, an assault on chemical facilities that would unleash a toxic chemical attack on the local community.

Deletions

The following sections were deleted from the original bill:

§2104. Export enforcement for counterproliferation.

§2124. Laboratory biosecurity information sharing.

§2136. Federal law enforcement training to investigate biological threats.

There is no explanation given for any of these changes so we can only guess at the reasons. The deletion of the first section is due to the re-write of §2103 that establishes the National Export Enforcement Coordination Center. The last section deleted is almost certainly due to the inability to come up with the necessary funding to support a realistic law enforcement training effort. For the life of me, I can’t imagine why the information sharing section was deleted.

Additions

The following sub-paragraphs were added:

§2101(a)(4) “support homeland security-focused risk analysis and risk assessments of the homeland security hazards described in paragraphs (2) and (3), by providing relevant quantitative and nonquantitative threat information;”

§2102(c)(2) “allocation of resources for research and development for chemical, biological, radiological, and nuclear attack prevention, protection, response, and recovery;”

It doesn’t appear that either of these are substantive changes to the language of the bill. I would be interested in having someone explain to me what ‘quantative threat information’ is.

Technical Error

The technical error that I identified in my post last summer on the introduction of the bill remains in the substitute language. The error is found in §2142 in the discussion of responsibilities for recovery from a CBRNE attack or incident. Paragraph (b) provides a listing of items that should be included in guidance to be developed for “for clean-up and restoration of indoor and outdoor areas, including subways and other mass transportation facilities, that have been exposed to chemical, biological, radiological, or nuclear materials” {§2142(a)}.

Sub-paragraph (5) reads “maintenance of negative air pressure in buildings”. That requirement only makes sense in labs or facilities where CBRNE materials are stored or released so that the release will remain contained in the building. All other buildings in an affected area will want to maintain positive air pressure to keep the CBRNE materials out of the building.

For locations where a CBRNE attack takes place within a public building, this provision makes some sort of sense during the decontamination process, but that purpose is not made clear in the wording of this section. Even in this case building ventilation would be the most effective and safest decontamination for many toxic chemical agents as long as proper precautions are taken.

Major Shortcoming

The major shortcoming of this bill, and every WMD bill that I have seen to date, is that it does not address the easiest WMD attack mode, attacks on chemical facilities or transportation assets that release toxic chemicals into the community. While the CFATS program addresses security measures to help prevent such attacks on facilities and TSA rail security regulations work to prevent attacks on rail cars containing toxic materials (and no one is looking at protecting truck-load shipments of these materials), there are no provisions in either of those programs for community planning for response to successful attacks on those chemical assets.

At the very least the Metropolitan Medical Response System Program (MMRS) outlined in §2136 of this bill should require facilities that maintain significant inventories of toxic inhalation hazard chemicals to provide local medical facilities with material safety data sheets for those chemicals. Potentially affected medical facilities should be required to have a plan for responding to a mass casualty event involving those specific chemicals, including outlining initial and follow-up treatment regimens for the injuries expected from exposure to those specific toxic chemicals found in local industries.

Congressional Hearings – Week of 2-13-12

This week starts to heat up the happenings on Capitol Hill. President Obama will finally publish his FY 2013 Budget Request Monday, and a long parade of political appointees will start to appear in congressional hearing rooms; Secretary Napolitano starts the DHS parade with two appearances this week. The Senate Homeland Security and Governmental Affairs Committee will finally debut their new cybersecurity legislation. Finally the House Homeland Security Committee will markup a WMD bill.

FY 2013 Budget

Secretary Napolitano will make two trips to the House committee rooms on Wednesday to explain the President’s request for spending in FY 2013. In the morning she will start with the hearing before the Homeland Security Subcommittee of the House Appropriations Committee. In the afternoon she will repeat her statement at the House Homeland Security Committee.

There will be a lot of questions about pet projects from committee members, but nothing of substance will be agreed to in this round of discussions. CFATS might come up, but it will be a high level discussion, again no details. The most interesting thing for CFATS will be to see if the Administration again requests a two year extension of the program’s authorization.

Cyber Security

The Senate Homeland Security Committee Staff has been working hard with other committee staffs to develop a comprehensive cybersecurity bill that address the major concerns of all of the cyber players in the Senate. It will be introduced this week and Chairman Lieberman’s Committee will hold the first hearing on the bill on Thursday. There is little likelihood that control systems will receive any major attention in the bill, but we can always hope.

WMD Markup

The full House Homeland Security Committee will meet Wednesday morning to markup four separate bills, a sure sign that Chairman King doesn’t expect much in the way of opposition to any of the bills. The last of the four to be listed for consideration (though that does not mean it will be the last to be taken up at the hearing) is HR 2356, the WMD Prevention and Preparedness Act of 2011. I discussed the provisions of this bill back in July when it was introduced and am quite surprised that it took this long for the Committee to take it up; its a favorite topic of Rep. King. Substitute language will be offered by Chairman King, but at first glance it doesn’t seem to change much about the areas I previously discussed. I’ll look at it more closely before the hearing.

S 1546 Introduced – DHS Authorization Bill

Earlier this week Senators Lieberman (I,CT) and Collins (R,ME) introduced S 1546, the Department of Homeland Security Authorization Act of 2011. A copy of the bill is not yet available from the Government Printing Office, but it is hardly necessary as the Senate Homeland Security and Governmental Affairs Committee printed a copy of substitute language for the bill that is being considered by that Committee in markup hearings conducted this last week and next week. Since that substitute version will be the basis for any other Committee actions, a review of that will be more important than a review of the introduced version.

There is no mention of chemical, transportation, or cyber security in the bill, in fact there is relatively little mention of security in this bill reflecting the current DHS emphasis on recovery. There are still some provisions in this bill that will be of interest to the chemical, transportation and cyber security communities. They include:

• Catastrophic incident planning;

• Guidelines concerning weapons of mass destruction;

• Plume modeling;

• Metropolitan medical response system; and

• Classified national security information program.

Catastrophic Incident Planning

Section 401 sets out requirements for the Department’s responsibilities for “leading, promoting, and coordinating efforts of Federal agencies to conduct catastrophic incident planning” and reviewing plans for “private sector entities for catastrophic incidents submitted to the Federal agencies” {§526(b)(3)}. The Department is specifically tasked with “promoting and supporting appropriate catastrophic incident planning by private sector entities, including private sector entities that own or manage critical infrastructure” {§526(b)(6)}. This should include high-risk chemical facilities.

Weapons of Mass Destruction

Section 413 requires the Department to establish guidelines “for responding to an explosion or release of nuclear, biological, radiological, or chemical material” {§531(a)(1)}. Those guidelines would include:

• Protective action guidelines for emergency response personnel;

• Exposure effects of the biological, chemical or radiological agents; and

• Information about effective treatments for WMD victims for emergency response personnel and mass care facilities.

Plume Modeling

Section 414 requires the Secretary to develop an ‘integrated plume model’ (similar to what we used to call a downwind message in the Army) that would serve as a tool for emergency responders for “the assessment of the location and prediction of the spread of nuclear, radioactive, or chemical fallout and biological pathogens resulting from an explosion or release of nuclear, radioactive, chemical, or biological substances” {§318(a)(2)}. Provisions would be required to be made for the release of the model to “nongovernmental organizations and the public to enable appropriate response activities by individuals” {§318(b)(2)(B)}.

Metropolitan Medical Response System

Section 418 reauthorizes the Metropolitan Medical Response System to continue to assist State and local governments “in preparing for, protecting against, and responding to mass casualty incidents by systematically enhancing cooperation and integration of emergency response providers and public health and medical personnel” {§2042(b)}. Last session similar legislation was introduced as HR 4580 and I made some suggestions then as to how CFATS emergency response planning could be incorporated into MMRS preparations.

Classified National Security Information Program

Section 602 would establish a Classified National Security Information Program which will be designed “to safeguard and govern access to classified information shared by the Federal Government with States, local governments, Indian tribes, and private sector entities” {§210G(b)}. This program would implement the provisions of EO 13526 for classified information (presumably intelligence information).

The program would include responsibility for:

• Tracking the status and final disposition of security clearance requests;

• Developing and maintaining a security profile of facilities that have access to classified information;

• Developing appropriate training for personnel with access to classified information; and

• Preparing an annual report on the status of the Program to Congress.

Moving Forward

The Homeland Security and Governmental Affairs held the first of two markup hearings on the bill earlier this week, but there are no real details beyond a link to the web cast currently available. The second of the two hearings will be held this Wednesday, after which we should find more details on the Committee web site.