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 27th, 2023.
In a statement on the Committee web site, Chair Green (R,TN) said:
“I am proud of this Committee’s work to defend the homeland and stand by DHS law enforcement, both in and out of the field. To safeguard chemicals of interest from malicious terrorists, this Committee voted on a bipartisan basis to reauthorize CFATS, a critical DHS program that enhances the site security of chemical facilities across America.”
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 27th, 2025 instead of September 30th. 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.
Other Amendments
While these ten amendments were not adopted, they provide some insight into what Congress may be considering in a hypothetical reauthorization bill. I suspect that a major reason some of these amendments failed had little to do with support for the actual amendment, but more to do with a legislative need to have as clean an extension as possible to avoid complications in getting a bill to President Biden before July 27th.
The ten amendments were:
An amendment by Rep Clarke (D,NY) would have amended 6 USC 622(d)(1) to require that DHS conduct audits and inspections no less than every two years.
An amendment by Rep Carter (D,LA) would have added a §3 to the bill that would require CISA to establish a secure platform for covered facilities to “report, on a voluntary basis, information regarding emerging threats, including terrorism threats, posed by unmanned aircraft systems”.
An amendment by Carter would have added a §3 that would require the GAO to compile a report on the CFATS risk assessment process focusing on risks to surrounding communities.
An amendment by Rep Magaziner (D,RI) would have amended 6 USC 623 by adding a new subsection (g) that would have required CISA information sharing with local officials about local CFATS covered facilities.
An amendment by Rep Jackson-Lee (D,TX) would have added a §3 that would require DHS to produce a study on how to improve training and support for local emergency response providers in areas with high concentrations of covered chemical facilities regarding how to respond to a terrorist attack on a chemical facility.
An amendment by Rep Thompson (D,MS) would have added a §3 that would have required DHS to contract with an external entity to conduct a study on the national security and homeland security implications of current CFATS exemptions (for water facilities for example).
An amendment by Rep Swalwell (D,CA) would have amended 6 USC 622(d)(1) to include requirements for cybersecurity expertise in inspection teams.
An amendment by Swalwell would have added a §3 that would require CISA to conduct an review of current CFATS guidance in the Risk Based Performance Standards for cybersecurity to determine if such cybersecurity measures are consistent with, and satisfy all elements of the Cybersecurity Performance Goals issued.
An amendment by Rep Menendez would have amended 6 USC 622(d)(1) to require periodic refresher training for chemical security inspectors.
An amendment by Rep Payne (D,NJ) would have amended 6 USC 622(c)(1)(B) to require facilities to coordinate emergency response plans with local officials and require CISA inspectors to audit that coordination during compliance inspections.
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 27th deadline.
The Senate could also take up S 2178 before the house takes up HR 4470, that bill provides for a longer extension of the CFATS program. Then the House would have to decide if they would go along with that extension or try to convince the Senate to agree to their shorter version.