Tuesday, July 23, 2013

House Leaders Threaten CFATS Program

Last week the committee chairs of the three House committees (okay two committees and an Appropriations Committee subcommittee) that have the most jurisdiction over the Chemical Facility Anti-Terrorism Standards (CFATS) program ( Carter-Appropriations, Upton-Energy and Commerce and McCaul-Homeland Security)  sent a letter to Secretary Napolitano formally complaining about the problems that have been plaguing the implementation of that program and the lack of progress in developing the Ammonium Nitrate Security Program (ANSP).

The Problems

The fact that these three are critical of the CFATS implementation is hardly news to anyone that has been following the CFATS program over the last couple of years. In the last year both Upton and McCaul have chastised Director Wulf and Under Secretary Beers in hearings before their respective committees. Over the last year Carter has actively tried to reduce the funding for the program either through draconian cuts (50% proposed for FY 2013) or withholding funds ($20 million for FY 2014).

The letter outlines complaints that have been detailed in other venues. They include:

• An incomplete risk evaluation system for tiering high-risk chemical facilities;
• Delays in evaluating, authorizing and approving site security plans;
• Failure to identify potentially at-risk facilities; and
• Delays in developing the ANSP regulations.

The Threat

The letter contains a very thinly veiled threat to discontinue funding of the CFATS program unless fundamental changes are made. The three Chairmen note:

“The Committees on Energy and Commerce and on Homeland Security, as authorizers, did not object to the appropriation of funds to CFATS in the Fiscal Year 2014 Homeland Security Bill because the House Committee on Appropriations, in both its bill and its accompanying Report, requires the Department to formally justify its expenditures, create a plan to reduce its backlog, and report to Congress on its progress to correct some of its most serious shortcoming.”

They then go on to note that just meeting these “requirements will not be enough to justify the program in the long term”.

Both Upton and McCaul promise to “continue the rigorous oversight and strict guidance needed to get CFATS on track”. But, since neither Committee has ever actually authorized the program it would be left to Chairman Carter to actually take realistic actions against the program if the required changes are not made.
The Reality

The frustration of these three gentlemen is clear, and it is shared in large part by Director Wulf and Under Secretary Beers. Given the political reality of the currently divided Congress, these threats are largely empty. Because of the potential threat posed by these facilities and their economic necessity, a federal program to oversee their protection against terrorist attack is absolutely necessary.

Unfortunately there is no consensus around which to re-build the CFATS program from scratch as evidenced by the lack of the ability to even get a comprehensive reauthorization of the current program. The only possible fallback position available (because no legislation would be specifically required) would be to regulate their security under the EPA’s Clean Air Act General Duty clause, an anathema to these three Chairmen.

Even if there were a way to make these three gentlemen accept the prospect, the EPA does not have the experience, manpower or regulations available to turn a single paragraph into a viable security regulation.

Instead of blindly making empty threats, these three gentlemen and their ranking members and the ISCD leadership need to get together and come up with concrete requirements that can be put into law and reasonably be put into place in by the folks at ISCD. Anything less will be continuing to contribute to the problem, not solving it.

BTW: It will be interesting to see if the Secretary chooses to respond publicly to this letter. The problem will cease to be hers long before any of these Committees can do more than hold another ineffectual hearing. If I were her, I would probably be content to walk away from the unsolved problem, after all it was largely the creation of an ineffective Congress.

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