2013 is now behind us, so this is a good time to take a look
at what the future holds for the CFATS program.
Program Authorization
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.
Cybersecurity
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.
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