Saturday, October 5, 2013

CFATS is Dead – For Now

As I mentioned in an earlier post the CFATS authorization language of §550 of the Homeland Security Appropriations Act of 2007 (PL 109-295) expired last night at midnight. Technically the CFATS program no longer exists. Practically speaking, as long as any funding measure that brings the federal government out of their current ‘shutdown’ includes language extending the authorization date in paragraph (b) to some point in the future, the CFATS program will continue on as before.

Existing Bills

This seems to be a good time to look at the status of proposed legislation that would change the authorization of the CFATS program to something more permanent. The bills currently under consideration (a term that would seem to imply more actual activity than we have seen to date) include:

HR 68, the Chemical Facility Security Improvement Act of 2013;
S 67, the Secure Water Facilities Act; and
S 68, the Secure Chemical Facilities Act

Actually, S 68 is the only bill that would actually have an impact on the authorization of the current CFATS program and even that is tenuous. It creates a permanent chemical security program but does not necessarily include within that new program the current program. The House bill would modify the current §550 language, but not the actual authorization termination language that currently requires periodic renewal. And the other Lautenberg Senate bill creates a CFATS like program for water treatment facilities, presumably as part of the new S 68 program.

As predicted in my blog posts (see the links above) about the introduction of each bill, there has been no committee action to date on any of these bills. With the death of Sen. Lautenberg earlier this year, the remote possibility of either Senate bill being considered has effectively disappeared.

No House Leadership

I have been surprised and more than a little disappointed that there has been no CFATS legislation proposed by either of the two House committees that claim some sort of jurisdiction over the CFATS program. In previous Congresses both committees have had conflicting bills making the CFATS program more permanent (see here and here). There has been no such legislation introduced in this session.

Part of the problem is that both committee chairs have expressed dissatisfaction with the progress that ISCD has shown in the authorization and approval of site security plans. Both Chairman McCaul (R,TX) and Chairman Upton (R,MI) (Homeland Security and Energy and Commerce respectively) have issued vague threats to discontinue the CFATS program. Of course neither is going to be responsible for leaving high-risk chemical facilities without any chemical security oversight, so the threats are empty political theater; a fact that is obvious to all involved.

Moving Forward

Congress had a large part to play in the inevitable delays in approving site security plans due to the way the §550 authorization was written. That means that the only way that the CFATS program will really get ‘fixed’ (apologies to the folks at ISCD that have worked hard to get their side of the problems addressed) is for Congress to write effective legislation making the current program permanent. It is fairly obvious that there is no one on the Republican side of these two committees that is willing to tackle that legislation.

If, as many pundits suggest, the current spending fiasco backfires on the House leadership and causes them to lose control of the House in the next session, then Rep. Thompson (D,MS) and Rep. Waxman (D,CA) will get another chance to move their vision of chemical facility security through the legislative process.

In the meantime, once funding is restored, the folks at ISCD will continue to move forward on authorizing, approving and inspecting the site security plans for high-risk chemical facilities.

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