2014 and CFATS

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 4^th 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.

House Leaders Threaten CFATS Program

Last week the committee chairs of the three House committees (okay two committees and an Appropriations Committee subcommittee) that have the most jurisdiction over the Chemical Facility Anti-Terrorism Standards (CFATS) program ( Carter-Appropriations, Upton-Energy and Commerce and McCaul-Homeland Security)  sent a letter to Secretary Napolitano formally complaining about the problems that have been plaguing the implementation of that program and the lack of progress in developing the Ammonium Nitrate Security Program (ANSP).

The Problems

The fact that these three are critical of the CFATS implementation is hardly news to anyone that has been following the CFATS program over the last couple of years. In the last year both Upton and McCaul have chastised Director Wulf and Under Secretary Beers in hearings before their respective committees. Over the last year Carter has actively tried to reduce the funding for the program either through draconian cuts (50% proposed for FY 2013) or withholding funds ($20 million for FY 2014).

The letter outlines complaints that have been detailed in other venues. They include:

• An incomplete risk evaluation system for tiering high-risk chemical facilities;

• Delays in evaluating, authorizing and approving site security plans;

• Failure to identify potentially at-risk facilities; and

• Delays in developing the ANSP regulations.

The Threat

The letter contains a very thinly veiled threat to discontinue funding of the CFATS program unless fundamental changes are made. The three Chairmen note:

“The Committees on Energy and Commerce and on Homeland Security, as authorizers, did not object to the appropriation of funds to CFATS in the Fiscal Year 2014 Homeland Security Bill because the House Committee on Appropriations, in both its bill and its accompanying Report, requires the Department to formally justify its expenditures, create a plan to reduce its backlog, and report to Congress on its progress to correct some of its most serious shortcoming.”

They then go on to note that just meeting these “requirements will not be enough to justify the program in the long term”.

Both Upton and McCaul promise to “continue the rigorous oversight and strict guidance needed to get CFATS on track”. But, since neither Committee has ever actually authorized the program it would be left to Chairman Carter to actually take realistic actions against the program if the required changes are not made.

The Reality

The frustration of these three gentlemen is clear, and it is shared in large part by Director Wulf and Under Secretary Beers. Given the political reality of the currently divided Congress, these threats are largely empty. Because of the potential threat posed by these facilities and their economic necessity, a federal program to oversee their protection against terrorist attack is absolutely necessary.

Unfortunately there is no consensus around which to re-build the CFATS program from scratch as evidenced by the lack of the ability to even get a comprehensive reauthorization of the current program. The only possible fallback position available (because no legislation would be specifically required) would be to regulate their security under the EPA’s Clean Air Act General Duty clause, an anathema to these three Chairmen.

Even if there were a way to make these three gentlemen accept the prospect, the EPA does not have the experience, manpower or regulations available to turn a single paragraph into a viable security regulation.

Instead of blindly making empty threats, these three gentlemen and their ranking members and the ISCD leadership need to get together and come up with concrete requirements that can be put into law and reasonably be put into place in by the folks at ISCD. Anything less will be continuing to contribute to the problem, not solving it.

BTW: It will be interesting to see if the Secretary chooses to respond publicly to this letter. The problem will cease to be hers long before any of these Committees can do more than hold another ineffectual hearing. If I were her, I would probably be content to walk away from the unsolved problem, after all it was largely the creation of an ineffective Congress.

Senate Judiciary Committee Jurisdiction

I’ve recently written a couple of blog posts about Sen. Grassley’s (R,IA) new found interest in the CFATS program problems (8-3-12, 8-7-12, 8-22-12). Since Grassley is the Ranking Member of the Senate Judiciary Committee I have been trying to figure out his interest in investigating the problems at ISCD; after all his Committee has no specific NPPD or security oversight responsibilities.

Jurisdiction

I have looked at the Committee’s web site and its description of the jurisdiction of the Committee. There doesn’t seem to be anything there that would be directly applicable to the problems at ISCD. So I started asking around and have been told by a couple of people that the Committee has historically taken its oversight of the Department of Justice to include the responsibility for looking into criminal activity within the government that one would expect that the DOJ should be investigating.

Illegal Activity?

Now the cronyism charge made by the anonymous reader that I described in my latest Grassley related post, could be seen as a violation of one or more of the Civil Service rules applicable to the hiring of an ISCD Director, but that is a bit of a stretch to consider that worthy of a Senate Judiciary Committee investigation. Lying to Congress about the status of the CFATS implementation could be a serious charge, but one would be hard pressed to prove that the statements before various committee hearings by Under Secretary Beers or various ISCD personnel over the years were actual lies rather than political spin.

Now there might be something that we haven’t seen mentioned in the press yet that might provide fodder for such an investigation. It seems that someone at NPPD (most likely Beers, I suppose) ordered an investigation into the leak of the Anderson-Wulf memo to Fox News. Now a leak investigation would certainly be appropriate, but it seems that the investigation was conducted by investigators from the Federal Protective Service; sworn law enforcement personnel. Those investigators were getting sworn statements from everyone in ISCD stating that they were not the source of the leak. And everyone was reminded that falsely swearing to Federal law enforcement officers is a Federal offense in its own right.

To me that seems to be a possible abuse of power, but not really illegal. A couple of people have told me (not for attribution unfortunately) that it is actually against the law, but no one has provided me with a cite for the law that is being broken, so I don’t really know. If it is it seems odd that Grassley or his anonymous reader friend has mentioned any investigation into this matter.

General Malfeasance

Then again, committees in both the House and Senate have a tendency to make up their rules as they go along, guided by political expediency more than actual written policy. That may make the general malfeasance described in my second Grassley post an adequate justification for a Senate Judiciary Committee investigation; especially since it came from a ‘whistleblower’.

Outside Investigation

Since Chairman Leahy (D,VT) and Grassley were both re-elected last year, this certainly won’t be about election year grand-standing. Any investigation carried out by the Committee will probably not see hearings until after the election. The people that I have talked to in Washington have been fairly generous of their praise in the investigators on the Judiciary Committee Staff; if there is some serious wrong doing to be found they will likely find it.

Unfortunately, they will be looking for illegal activities or official malfeasance, not real problems with the CFATS program. I’m afraid that we’ll have to wait for the House and Senate Homeland Security Committees to look into that. Or perhaps the House Appropriations Committee will be the one to take a real look; they have yet to complete their hearing on the ISCD problems.