2013 is now behind us, so this is a good time to take a look at what the future holds for the CFATS program.
First, and probably most important the program will receive another extension of its temporary authorization in the next two weeks when the Congress passes another FY 2013 spending bill. If that bill covers the entire year (most likely) then the CFATS program authorization will be extended to October 4th 2014. This short term authorization will continue to color everything else about the program.
Three separate House committees (Homeland Security, Energy and Commerce, and the Appropriations Committees) will continue to pick at the leadership of the DHS Infrastructure Security Compliance Division (ISCD) about the slow pace of approvals of Site Security Plans. The improvements made in the rate of approvals will continue to be glossed over by the three Committee chairs as they continue to ignore the political and operational constraints placed upon the program by Congress.
The only Committee that has any real chance to have a real effect on the program continues to be the House Appropriations Committee. They control the purse strings and the annual re-authorization process. As long as the appropriations process remains broken, however, we can expect to see a paragraph in each spending bill for DHS include a provision extending the CFATS authorization.
There are no prospects for separate authorization for the CFATS program to be passed in either House this year. There has been no proposals for a permanent authorization made in the House and the proposal made by the late Sen. Lautenberg (S 68) will continue to be ignored by the Senate Homeland Security and Governmental Affairs Committee.
Personnel Surety Program
It has been almost 8 months since ISCD published their latest proposed version of their personnel surety program. They are closer to a program acceptable to the chemical industry than they were with 2009 proposal, but there are still a large number of industry concerns that need to be dealt with. I will not be surprised if we do not see a 30-day ICR notice on this program this year. If there is, it will almost certainly not include enough changes to make industry close to happy with program and we will not see an approval of the program by the Office of Management and Budget.
This is almost certainly going to need to see Congressional action before this program gets resolved. While this is an election year which slows down Congressional work on controversial topics, I expect that we will see legislation proposed that will extend TWIC coverage to CFATS facilities. Depending on how well crafted the bill is, it could actually get passed before November if it can make it to the floor.
Appendix A Update
The President included in his Chemical Safety and Security Executive Order (EO 13650) a requirement that DHS look at updating the DHS chemicals of interest (COI) list. As I noted in an earlier blog that requirement directed that:
The Secretary of Homeland Security shall identify a list of chemicals, including poisons and reactive substances, that should be considered for addition to the CFATS Chemicals of Interest list.
There have been on-again, off-again discussions with industry about this topic for a number of years now. I doubt that any of those discussions include listing poisons beyond the currently included release toxic COI and chemical warfare agents. The other serious toxins, including the ‘deadly ricin’ are not really weapons of mass concern and are thus inappropriate for inclusion in the Appendix A listing. The only possible exception to this would be methyl bromide and chloropicrin which I have advocated for inclusion for some time, but those were both clearly dealt with in the Appendix A regulation development.
I doubt that we will see any proposed regulatory change associated with this EO requirement.
Ammonium Nitrate Regulations
The regulation implementing the Ammonium Nitrate Security Program mandated by Congress continues to be held up by industry concerns. The biggest political stumbling block here is the concerns of the agricultural industry about the effects these regulations would have upon the use of temporary employees. ISCD will have a hard time trying to come up with a workable program for vetting migrant farm workers who are routinely expected to be picking up fertilizer grade ammonium nitrate from farm co-ops and ag chemical distribution facilities.
The agricultural lobby is still very strong in Washington and DHS has not been able to overcome their opposition to much of anything that deals with chemical security. The only exception was the inclusion of propane as a COI, but even there ISCD had to set an extremely high threshold (60,000 lbs instead of the normal 20,000 lbs for flammable COI) to overcome the objections of this lobby.
The only out I see here is for ISCD to specifically adopt TWIC as a mode of vetting transportation workers picking up ammonium nitrate for direct delivery to farms. This would be an extension of the TWIC program not really authorized by Congress, but it might get by with a wink and a nod from legislators.
I will be very surprised if we see the publication of the long overdue final rule on this program this year.
Chemical Sector Security Summit
While the CSSS is not technically a CFATS meeting, it is run by the Chemical Sector Coordinating Council, this annual meeting has been an important source of information about the CFATS program since its inception. Last year funding issues delayed the announcement of the meeting dates and that contributed to the decline in the number of industry attendees.
While I keep getting assurances from DHS contacts that the Summit is important to ISCD, it seems as if that may be lip service more than an actual commitment. We still have not seen publication of the slides from the various CFATS related presentations that we have come to expect from the earlier meetings.
I expect that we will again see a very late announcement of this year’s Summit and there will be an even smaller industry turnout for the meeting. In the current spending environment, I expect that that low turnout will be used as justification for killing the Summit.
A possible way out for DHS to save the program would be to include web casts of the presentations about the CFATS program. This would greatly increase the number of possible participants and show that there is significant support within the regulated community for continuing the Summit.
The CFATS program was almost certainly one of the regulatory programs that the President had in mind when he included §10(a) requirement in the Cybersecurity Executive Order (EO 13636) for including the Cybersecurity Framework (CSF) in current regulatory requirements for critical infrastructure organizations.
Under this EO ISCD has a requirement to report to the President within 90 days of the publication of the CSF (supposed to be published in February) if they have adequate authority to include the CSF in their regulatory scheme. Broadly speaking DHS does have the authority to include the guidance from the CSF in the CFATS program. It would probably have to go through a rule making process much like that used for the Risk-Based Performance Standards guidance document. That could be a time consuming process that would only be able to be started this year.
Continue to Muddle Along
In short I don’t see any major changes being made to the CFATS program in the coming year. Director Wulf and his dedicated chemical security inspectors will continue to make incremental improvements to the approval process for site security programs. Sometime this year the actual inspection process will begin for those facilities that have an approved site security plan.
Other than that the program will continue to muddle along, handicapped by the ineptitude of Congressional authorization and oversight.