Reader Comment: Dave Grisenti on CFATS

A long-time reader and former CFATS Chemical Security Inspector, Dave Grisenti published a series of posts (links below) over on LinkedIn about his experiences with and the need for the reauthorization of, the Chemical Facility Anti-Terrorism Standards (CFATS) program. While Dave makes points that have been discussed here, and many other places as well, he does so from the unique perspective of someone who was on the front lines of the CFATS program. I urge anyone that has anything to do with chemical facility security programs, or legislation, to read all six of Dave’s posts; they were intended to be a single post, but program constraints at LinkedIn cut it into pieces, thus the lack of titles for each piece.

• I am no longer a Federal Employee of the US Government.

• Amid another political crisis of economy the bad old 2008 recession, an opportunity came about that was a perfect fit for me…CFATS.

• On July 27, 2023, the Chemical Facility Anti-Terrorism Standards (CFATS) https://lnkd.in/gbxtZeR7 program expired after the Senate failed to reauthorize it.

• With a bipartisan 409-1 bill approved by the house to grant just 2 more years to have what congress promised (oversight hearings that could have updated the authorization to new and current threats), it tells you one Senator is obviously not serious about national security or the fight against terrorism.

• Many entities post lapse continue to advocate to bring back CFATS (cont.).

• Every day without CFATS authorization is a day of increased vulnerability for American communities.

I have said here a couple of times now (most recently here) that I do not think that there is much chance of the CFATS program being stood back up. That does not mean, however, that I disagree in any way with Dave’s arguments that the program is necessary.

Review – Chemical Security Inspector Reduction in Force – Part 4

I have been talking about the upcoming reduction in force of CISA’s Chemical Security Inspectors (CSI) this week. This will probably be the last post in this series of free posts in the series so I thought that I would try to outline what I would like to see happen. The earlier posts in this series include:

CSI RIF,

Chemical Security Inspector Reduction in Force – Part 2, and

Chemical Security Inspector Reduction in Force – Part 3

Too Late to Fix

To start with, I learned today that the CSI have been given until Monday to make their decisions about whether to take the offered ways to quit (making DHS look better than firing them would), or to stay around long enough to actually get their reduction in force (RIF) notices that everyone knows are coming. Neither option is great. Take the deferred resignation and get paid (with benefits) through the end of the fiscal year, but resignations mean that there will be no unemployment benefits. Get RIFed and they are eligible for unemployment benefits, but at much lower pay than they have been receiving. Federal medical benefits also disappear; fortunately, Obama Care is now available, not great, but better than what was available the last time I was laid off.

 

To see the alternatives that would provide a longer-term solution to the job situations for CSI and the security support for chemical facilities, see my article at CFSN Detailed Analysis - https://patrickcoyle.substack.com/p/chemical-security-inspector-reduction-7ca - free content.

CFATS and HR 8070 – NDAA Amendment

Yesterday, the American Chemistry Council published a press release supporting a proposed amendment to HR 8070, the FY 2025 National Defense Authorization Act, that would reinstate the Chemical Facility Anti-Terrorism Standards (CFATS) program. The amendment proposed by Rep Lee (R,FL) is one of over 1300 that have been proposed to the House Rules Committee for possible consideration if the bill moves to the floor under a rule.

Amendment 594 would change the expiration date for the CFATS program from July 27^th, 2024 to “the date that is two years after the date of the enactment of the National Defense Authorization Act for Fiscal Year 2025.” The bipartisan amendment has nine cosponsors.

The House Rules Committee has not yet set a hearing date for the formulation of a rule for the consideration of HR 8070. There is no way of knowing if this particular amendment would be included the rule for the consideration of HR 8070.

As I mentioned in a post yesterday, because of the bipartisan support seen for HR 8070 in the Armed Services Committee, there is a very real possibility that any rule for the consideration of HR 8070 could be blocked in the Rules Committee or on the floor of the House by radical Republicans who feel that the bill does not adequately reflect their views. In that case, the bill would likely, again because of the bipartisan support the bill enjoys, be considered under the suspension of the rules process. That process does not allow for consideration of any floor amendments.

Yesterday’s press release notes that the ACC, along with three other industry support organizations, has sent letters to the House leadership supporting Lee’s amendment. The letters were sent to Speaker Johnson and Minority Leader Jefferies. I suspect that it would have been helpful if it had also been sent to the Chair and Ranking Member of the House Rules Committee.

Based upon the earlier 409 to 1 vote for HR 4470, the bill similarly extending the CFATS program that is currently blocked in the Senate, I suspect that amendment 594 would receive strong bipartisan support if it were offered during the consideration of HR 8070. The Senate would be expected to consider their own language for the bill when it is considered in that body and similar language would not likely make its way into the Senate version due to the continued opposition to the CFATS program by Sen Paul (R,KY). I suspect, however, that the CFATS language could find itself in the version of the bill ultimately reported by the conference committee if the language is adopted in the House version of the bill.

Review - Reader Comment: Wither CFATS?

I had an interesting telephone conversation today with a long-time reader (and CISA employee, so they cannot be named here) about the future of the Chemical Facility Anti-Terrorism Standards program. While CISA is officially certain that Congress will get its act together and reauthorize the program, they are bit by bit taking the still existing FY 2024 CFATS funding and parceling it out to other under-funded or un-funded programs. The reader wanted my take on the future of CFATS.

At this point, I do not hold out a lot of hope that the Congress will get its act together and pass HR 4470. It appears that it is hard to get congress critters excited about preventing terrorist attacks using industrial chemicals. Part of the reason for that is the success of the CFATS program in making it difficult for terrorists to get their hands on weaponizable chemicals. There has been no terrorist attack in the United States using an industrial sized improvised weapon since the Oklahoma City bombing in 1995. Maybe there will never be another.

But, if there is, people will be demanding to know why the federal government failed to prevent the attack. And we will be able to point the finger at the 118^th Congress. The Congress that found it too hard to overcome the objections of a single Senator.

 

For more details about how I reached this conclusion, see my article at CFSN Detailed Analysis - https://patrickcoyle.substack.com/p/reader-comment-wither-cfats - subscription required.

State Actions on CFATS – 4-11-24

I do not normally cover State level legislative efforts, as each State legislature has their own peculiar ways of dealing with legislation, but today I was pointed at an article on NebraskaExaminer.com that includes a discussion about an unusual legislative effort to deal with the fallout from Senate inaction on HR 4470, the CFATS reauthorization bill. Back in January Nebraska State Legislator Bostar introduced LB1048. The bill would require a CFATS covered facility to participate in CISA’s ChemLock program until such time as the CFATS program is reauthorized.

The ChemLock program is a voluntary program that CISA developed to provide chemical security assistance to chemical facilities that were not covered by the CFATS program. While there are a number of important features to that program, it is by no means a substitute for CISA’s oversight of the CFATS program. Still, I can understand Bostar’s concern about the Senate’s inaction on the CFATS reauthorization.

CFATS Page Update – 3-5-24

Once again, CISA has updated the landing page for the officially defunct Chemical Facility Anti-Terrorism Standards (CFATS) program. Hoping against continued Senate inaction {or more appropriately, opposition of Sen Rand (R,KY)} that the program will be resurrected, CISA moves the standard fare of the pre-termination page further down the page and inserts additional material urging the reinstatement of the program.

The two earlier attempts on the page to push for resurrection (CFATS Announcement and CFATS Lapse Impacts) have been shrunk with ‘READ MORE’ prompts to reveal their former glory. Three more similarly sized, but non-expandable, blocks have been added:

• 89 Million People Within Two Miles,

• Communities At Risk,

• Every Day Without CFATS Program Is Too Long

The short-on-information blocks refer back to themes that CISA Associate Director for Chemical Security Kelly Murray has been pushing assiduously since the program was allowed to lapse thru congressional inaction due to the aforementioned opposition of Sen Paul.

While Murray and the many industry supporters of the chemical security regulatory program have long hoped for the Senate to officially take up and pass HR 4470, it is becoming increasingly clear to even the most ardent supporters (and I include myself in that group) that Sen Paul has no intention to backtrack on his poorly stated opposition to the program. More importantly, it is clear that his sole voice in opposition is sufficient to overcome the support of the vast majority of both houses. At this point, HR 4470 must be considered to be dead.

As I have mentioned on numerous occasions, while program authorization has been officially terminated, funding for the program has been continued each time that Congress has passed a continuing resolution keeping the Federal government funded at FY 2023 levels. That continued funding is currently slated to terminate on March 22^nd. By that date, it is fervently hoped, that Congress will pass a second (of course the first has not yet been considered) spending minibus bill that would provide funding for the Department of Homeland Security.

At this point, Murray et al must place their hope for the CFATS program on that spending bill. At the very least, it must continue spending for chemical security to keep any hope for the program alive. More importantly, it could provide for a specific reauthorization of the program that is tied to the funding for DHS, a move I have long suggested. 

Review - CFATS and Chemical Plant Expansions

I was reading an article last week about the expansion of a hydrogen peroxide manufacturing facility in Texas, and I thought about the security implications of such expansions, the need for an updated security plan and security planning for the construction process. That inevitably brought me back to thinking about the problems the Senate imposed on chemical manufacturers by not reauthorizing the Chemical Facility Anti-Terrorism Standards (CFATS) program last July. If the CFATS program were still up and functioning, CISA would be a partner in the security planning process for the expanding facility.

These are just some of the chemical security issues that the Senate caused by their failure to take up and approve HR 4470, the Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2023, that was passed in the House by a vote of 409 to 1. The Senate can solve these problems by passing HR 4470. The longer they wait, the longer it is going to take CISA to get the program back into smooth operation.

 

For a more detailed look at the security issues involved in plant expansions, see my article at CFSN Detailed Analysis - https://patrickcoyle.substack.com/p/cfats-and-chemical-plant-expansions   - subscription required.

Reader Comment – LEPC’s and CFATS

Yesterday, David Sahm published a comment on my ‘Hydrogen and CFATS’ post. He noted, in part, that: “Hopefully, Local Emergency Planning Committees will take note and sound alarm to their reps in Congress.”  LEPCs were established under the EPA’s Emergency Planning and Community Right-to-Know Act regulations and are supposed to be the local agency that oversees emergency planning activities for chemical facilities in a locality (typically county/parish/borough level).

In recent years, CISA, through the Chemical Facility Anit-Terrorism Standards (CFATS) inspectors have been reaching out to local LEPCs as part of their inspection process to ensure that covered facilities have been coordinating with those organizations on emergency response matters. Such coordination between emergency response planners and high-risk chemical facilities should be a cornerstone of both safety and security programs at such facilities.

To the best of my knowledge, this is the only government effort that is trying to ensure that chemical facilities are participating in the LEPC process. This is yet another reason that Congress should re-instate the CFATS program as quickly as possible.

CRS Reports – Week of 9-2-23 – CFATS Sunset

This week the Congressional Research Service (CRS) published a report on “The CFATS Sunset and Its Implications for Chemical Security”, looking at the termination of the 15-year-old program just over a month ago. The report is self-described this way:

“This Insight describes potential changes to chemical security in the wake of CFATS expiration and provides analysis of potential longer-term implications for the Chemical Sector’s security posture if CFATS is not reauthorized. It may inform congressional action, whether Congress decides to reinstate CFATS (with or without modifications) or allows the lapse in regulatory authorization to continue indefinitely.”

The discussions about potential changes in security measures absent the CFATS regulations is cursory at best. It only looks at the TSDB vetting process in any depth and that is covered in a single paragraph.

The only ‘outside’ information looked at is a two-year-old GAO report on duplicative chemical security programs. A close reading of that report shows that the CFATS program was a much more comprehensive security program than any of the other programs against which the GAO compared it, as would be expected for a program targeted at high-risk chemical facilities.

This report provides minimal information and does nothing to further the Congressional dialogue about whether or not the CFATS program should be reinstated.

S 2499 Introduced – CFATS Extension

Last month, Sen Peters (D,MI) introduced S 2499, the Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2023. The bill changes the termination date of the Chemical Facility Anti-Terrorism Standards (CFATS) program from July 27^th, 2023, to July 27^th, 2025. The bill was introduced on July 26^th, the day before the program terminated.

The language of this bill is nearly identical to the language of S 2178 except that that the earlier bill would have extended the program through 2028. Peters introduced that bill as well.

Moving Forward

While Peters is the Chair of the Senate Homeland Security and Governmental Affairs Committee, I do not expect that this bill will move forward (see my commentary below).

Commentary

If this bill had passed the Senate and House on July 27^th, it would have saved the CFATS program from termination. But the program did terminate, all of the existing site security plans were no longer enforceable. If this bill were to pass next month when Congress returns from their summer recess, it would start the program all over again, with all of the previously covered facilities having to restart the regulatory process by filing a new ‘initial’ Top Screen.

At this point any legislation to re-instate the CFATS program is going to have to address the termination. It will have to have some sort of language that would re-instate site security plans as of July 26^th, 2023. Since facilities may have allowed some of the security measures to lapse, the bill would have to provide a time period in which each facility would be required to re-instate all security measures outlined in the previously approved site security plan, along with adding a process to request an extension of the reinstatement requirement. Similar language would be needed to address the facilities which had been notified by the Office of Chemical Security that they were covered by the CFATS program but had not yet had their site security plan approved.