Friday, July 17, 2009


As I noted yesterday the Congressional Research Service published a report on the reauthorization options open to Congress for the soon to expire (10-04-09) authority for CFATS regulations. The report authored by Dana Shea examines the legislative history of the current authority, how the CFATS regulations have been implemented to date, security issues that have been mentioned in congressional debates but are as of yet unresolved, and potential solutions that have been proposed for addressing those issues. Finally, the report briefly examines the four pieces of legislation currently before Congress that address the authority for CFATS; HR 261, HR 2477, HR 2868, and HR 2892. Shea has done a very good job of summarizing the current situation, available options, and pending legislation. Anyone with an interest in the continuing regulation of high-risk chemical facilities should add this report to their library. A number of writers (myself included) have attempted to summarize the issues associated with the reauthorization of CFATS, but, due to space limitations, none of us have been allowed to approach the issue in the detail presented in this report. New Issues and Information Shea has identified an issue that I have yet to see addressed anywhere else, the problem of determining adequate funding levels for CFATS. The report notes that as early as December 2007 Congress was asking if the requested and appropriated funds were “sufficient to hire and retain the staff necessary to perform the required compliance inspections” (pg 6). Then Shea explains why that simple question has been so hard to answer:
“The degree to which funds are sufficient to meet agency needs likely depends on several factors external and internal to DHS. External factors include the number of regulated facilities and the sufficiency of security plan implementation. Internal factors include the ratio between headquarters staff and field inspectors; the risk tiers of the regulated facilities; and the timetable for implementation.”
In looking at the reauthorization options Shea provides more information on the option of failing to specifically reauthorize CFATS while continuing specific funding authority to enforce the program. I have reported hearing about this option, but Shea provides a cite {“Office of the General Counsel, General Accounting Office, Principles of Federal Appropriations Law, Third Edition, GAO-04-261SP, January, 2004, pp. 2-70–2-71” (footnote #27, pg 10 of the CRS Report)}for the GAO legal opinion that supports that option. Shea also notes what a number of us have written; using this option leaves DHS open to certain litigation if they were to attempt to enforce CFATS regulations in that situation. Minor Shortcomings I haven’t found any outright errors in the report, but I do disagree with a couple of minor points of interpretation. For example, Shea notes (pg 12) that “DHS has already implemented select regulatory extensions for certain agricultural operations and colleges and universities”. DHS certainly extended an ‘indefinite’ extension to agricultural ‘end users’. I don’t think, however, that the wording in the Appendix A final rule referenced in the footnote for ‘colleges and universities’ constituted a selective regulatory extension; it merely pointed out the procedures available to any facility to request a deadline extension. Another example can be found where Shea addresses the issue of reporting of security concerns in the discussion of Congressional options for addressing information security. The report states (pg 17) that: “Congress may also address concerns raised regarding the ability of concerned individuals to report misdeeds by creating a ‘whistleblower’ reporting mechanism.” Unfortunately, there was not an earlier discussion of existing protections that could have noted that DHS has a ‘CFATS Tip-Line’ that serves this whistleblower function. These are very minor shortcomings. In the final analysis the value of the research and the concise reporting far outweighs these issues. This is an important contribution to the ongoing political discussion about what is going to be done with CFATS. I highly recommend this report to all interested parties.

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