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.
Background
The last time that the CFATS program was reauthorized was on December 18th, 2014, Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2014 (PL 113-254). This was the first time that Congress was actually able to modify the CFATS programs since it passed the original authorization for the program on October 4th, 2006 when it included the program in the FY2007 DHS (PL 109-295, 120 STAT. 1388) spending bill as the infamous §550.
The initial CFATS authority expired three years after enactment. Each year through the enactment of the 2014 bill, the CFATS program was extended on a year-to-year basis in the DHS spending bill. Just about every year Congress held hearings to look at how the program was progressing and a number of reauthorization bills were developed, but none were able to get approval of both the House Homeland Security and the House Energy and Commerce, because of their differing outlooks on what purpose should be served by the CFATS program, with E&C being more concerned with environmental and worker safety issues.
The 2014 bill codified a lot of what DHS had done with the vague and broad authorization provided in the 2006 bill. It added some language about worker participation and whistleblower protections, and required DHS develop what came to be known as the Expedited Approval Program, to make it easier for smaller facilities to implement the CFATS program requirements for site security plans.
More importantly, the bill took the program out of the effective control of the House Appropriations Committee by setting a termination date that was not tied to DHS spending bill. Section 4 of the bill (128 STAT. 2918) made the effective date 30-days after the bill was enacted (being January 17th, 2015). Section 5 of the bill set the termination of authorization for the program four years from the effective date, or January 18th, 2019.
Since 2015, Congress has extended the program three times, twice in a standalone bills and once as part of the CARES Act (PL 116-136) by amending the §5 termination date. The first extension was for 15 months (to April 18th, 2020). The second extension set the termination date to July 20th, 2020. The most recent extension reset the termination date to July 27th, 2023 (last week). Both stand alone bills received strong bipartisan support.
118th Congress
Two bills were introduced earlier this year that were both clean extensions of the termination dates in Section 5. On June 22nd, 2023, Sen Peters (D,MI) introduced S 2178, Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2023, which would have provided a 5 year extension of the termination date. Even though Peters is the Chair of the Senate Homeland Security and Governmental Affair Committee, no action was taken on that bill in Committee.
On July 6th, 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 12th, the House Homeland Security Committee took up HR 4470 and adopted a single amendment that changed the bill’s termination date to July 27th, 2025. The House approved the bill on July 25th, by a vote of 409 to 1.
Action in the Senate
On July 26th, 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 117th or 118th 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 5th. 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.