Thursday, August 16, 2012

CFATS Under Attack

On Tuesday the Heritage Foundation published a report critical of the Chemical Facility Anti-terrorism Standards (CFATS) program. I’ll go into a more detailed review [Note: Link added 12:30 EDT, 8-19-12] of the report this weekend, but two quotes fromthe Abstract give a good overall review of the report:

“While a degree of government oversight over chemical security is warranted, the federal CFATS regulations have proved exceedingly complicated and overly burdensome on the private sector.”

“Rather than continuing flawed and misguided regulations, the DHS and Congress should work with the private sector to develop commonsense, market-conscious policy solutions for U.S. chemical security.”

While the important points raised in this report are worthy of study and comment in their own right, this report (combined with the ISCD fiasco, the appropriations committee concerns, the whistleblower critique by Sen. Grassley, and the environmentalists’ petition to the EPA to begin regulating chemical security under the general duty clause of the Clean Air Act) points to a larger political problem, the CFATS program has lost support from almost all political fronts.

Extending CFATS?

As recently as a year ago I was able to comment that there was little chance that Congress would not include another 1-year extension of the CFATS program in the DHS spending bill. On more than one occasion I had remarked that while there were on-going discussions about what additional measures should or should not be added to the program (ie: inherently safer technology, whistleblower protections, employee participation, etc), there was no one in Congress that had seriously suggested that the CFATS program ought to be terminated. We still aren’t quite at that point yet (though the Heritage Foundation report provides a philosophical grounding for such a suggestion), but there is enough opposition to CFATS program as currently constituted that I will no longer suggest that approval of another one year extension this October is a foregone conclusion.

FY 2013 CFATS Extension

Both of the current DHS appropriations bills for FY 2013 (HR 5855 and S 3216) contain the standard language (§532 and §534 respectively) extending the §550 authorization for the CFATS program until October 14th, 2013. Unfortunately, it doesn’t seem that either of these bills will be fully considered by Congress (HR 5855 has passed in the House and the Senate has taken no action on either bill). Numerous news reports indicate that an agreement has been reached to have a 6 month continuing resolution (CR) brought to Congress next month to carry the spending decisions for the remainder of the year until the new Congress takes office in January. Apparently both sides think that they have a chance at gaining control of both houses of Congress.

I expect that the continuing resolution will contain a clause extending the current CFATS authorization for the effective period of that CR. That would be in the spirit of a CR; maintaining the status quo.

After that all bets are off. Unless there is a radical shift in the composition of Congress it is unlikely that a coalition could be formed to start a new chemical security program from scratch. The same cannot be said for the possibility for canceling CFATS. A number of viable scenarios could be put together where the CFATS program authorization could be allowed to die.

The most likely would be that an unwieldy coalition of left-wing environmentalists (who oppose the current CFATS program on IST grounds) and right-wing fiscal conservatives (who oppose unwieldy government regulations) would agree to de-authorize the current program in hopes of reinstating a chemical security program in their own image. Both would ultimately fail in re-instating a chemical security program, but by the time they realized that, it would be too late.

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