Thursday, December 13, 2007

House Committee Held Hearings on CFATS Implementation

As I mentioned in my blog (House to hold CFATS Hearing) the House Homeland Security Committee, actually the Subcommittee on Transportation Security and Infrastructure Protection, held a hearing on Wednesday entitled “Chemical Security: The Implementation of the Chemical Facility Anti-Terrorism Standards and the Road Ahead.” The ‘Road Ahead’ was the “Chemical Facility Anti-Terrorism Act of 2008.” I haven’t yet had a chance to review that proposed legislation, so I’ll leave that for a future blog. Today I’ll discuss the testimony of the two witnesses that actually addressed the CFATS issue. The other three witnesses were more interested in the new legislation.


Bennie Thompson, the Chairman of the House Homeland Security Committee led off with a short prepared testimony. The only thing of real note was the statement that: “The CFATS regulations will sunset in October of 2009 and I feel strongly that Congress and this Committee should consider making these regulations permanent.” This has to be heartening to companies that are getting ready to start spending significant amounts of real money to implement the requirements of CFATS.


Once again Assistant Secretary Robert B. Stephan was the voice of DHS for CFATS. His six page prepared testimony was a cogent review of the CFATS development process and how the implementation has gone to date. One interesting piece of information was that there had been a second group of 50 facilities that were notified to complete a Top Screen before the final version of Appendix A was published in November. Here is what he said (on page 5 of his testimony):


“In October 2007, Phase 1(b) began, in which approximately 50 additional facilities believed to be high-risk were contacted with the request they begin their CFATS requirements in advance of the release of the final Appendix A. A number of the Phase 1(b) facilities have already submitted Top-Screens to the Department.”


He also provided an update on the progress of CFATS implementation to date (as of 11-25-07). The numbers given below reflect 5 days of effort after the publishing of the Final Rule on Appendix A on November 20th. About 1/50th of the projected facilities have completed the Top Screen in 1/12th of the available time. Registrations do look fairly good though.


·         “12,267 facilities have registered in the CSAT process;

·             2,079 facilities are in some phase of Top-Screen completion; and

·             1,197 facilities have submitted a completed Top-Screen.”


One last area of interest was Secretary Stephan comments on working with local agencies and first responders. While much has been made in the press about the conflict between the CFATS regulations and some State and Local rules, Col Stephan was very clear on the need for local involvement;


“Additionally, the Department intends to focus efforts on fostering solid working relationships with State and local officials and first responders in jurisdictions with high-risk facilities. To meet the risk-based performance elements under CFATS, facilities are likely to develop active, effective working relationships with local officials in the areas of delaying and responding to a potential attacks and a clear understanding of roles and responsibilities during an elevated threat situation.”


Clyde D. Miller; Director, Corporate Security; BASF Corporation, was the other witness that directly addressed the implementation of CFATS. As I had expected in my earlier blog, he was generally supportive of the current CFATS regulations. One point in particular that he did make was about the cost of implementation:


So, even though BASF and the 2000 other American Chemistry Council (ACC) member company facilities have already invested more than $5 billion to enhance security through the ACC Responsible Care® Security Code, the DHS rules leave little doubt that more action will be required of those facilities that are deemed to be high risk under those rules.”


He also made the argument that, due to the high cost of implementing the CFATS rules, Congress ought to consider revising and making permanent the current Interim Final Rule rather than trying to completely start new regulations from scratch. He made the argument that many companies might drag out the implementation of CFATS to avoid spending money if it became clear that in 2009 completely new and different requirements were to go into effect.

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