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.

HR 68 Introduced – CFATS Changes

As I mentioned earlier Rep. Jackson-Lee (D,TX) introduced HR 68, the Chemical Facility Security Improvement Act of 2013. The GPO site does not yet have a copy of this bill posted but the Library of Congress Thomas site does. While that is not an official publication, it is good enough to tell us that the language of HR 68 is exactly the same as the two earlier versions that I mentioned (HR 225-112^th Congress, and HR 261 111^th Congress).

The links above go to earlier blog posts where I describe the political shortcomings of the bill and everything in those posts still apply to this version. I’ll avoid repeating myself here and just provide a summary of what the bill does.

SSP Approval

Section 2(a) of the bill prohibits the Secretary from spending any money on the approval of a CFATS site security plan unless the facility meets local security standards set by any State or local government agency. Instead of saying that the Secretary can’t approve a site security plan unless it meets local standards, it essentially prohibits any DHS action on a site security plan (including presumably accepting the submission of the site security plan) unless the facility meets local standards.

Hmm… I just thought of something. This might be a good way to essentially opt out of the CFATS process. If a facility doesn’t meet local standards, the regulatory authority of the folks at ISCD would be suspended.

Program Changes

Section 2(b) of the bill makes a number of seemingly innocuous word changes (delete this and add this type of thing) to the §550 CFATS authorization language that would mandate some substantial changes to the program. It would eliminate the Chemical-Terrorism Vulnerability Information (CVI) program and place CFATS under the

The first would insert the words “from terrorist attack” in two places that would clarify the ‘threat’ from which the covered facilities would be at high-risk. This seems simple enough, but it seems to me that the only purpose would be to remove facilities from CFATS coverage that are only at risk of having DHS chemicals of interest (COI) stolen from the site to be used to make weapons of mass destruction for use in a terrorist attack. Theft isn’t exactly a terrorist attack.

Section 2(b)(1)(C) would remove the phrase that has provided the most problems for the folks at ISCD; “the Secretary may not disapprove a site security plan submitted under this section based on the presence or absence of a particular security measure”. This change would allow Department to tell facility owners exactly what security measures would be required for site security plan approval. It would also allow for the dismembering of the risk-based performance standards.

Section 2(b)(2) would change the way that information submitted to DHS was protected by the Government from public disclosure. It would eliminate the Chemical-Terrorism Vulnerability Information (CVI) program and put the CFATS program under the data protection of the sensitive security information (SSI) set forth in §1520.5 of 49 CFR. It would also eliminate the protection from any data submitted to DHS that wasn’t actually part of the site vulnerability assessment (SVA) or site security plan (SSP) submission. Information provided separately to DHS in response to questions about the program would not be specifically protected.

Finally §2(b)(3) would eliminate the phrase “nothing in this section confers upon any person except the Secretary a right of action against an owner or operator of a chemical facility to enforce any provision of this section”. This does not provide an affirmative right for citizen lawsuits, but it is certainly intended to open the door for their use.

Moving Forward

This bill did not see any action in either the 111^th or 112^th Congresses and I don’t believe that even a single hearing will be held on this bill.

113th Congress – Bills Introduced 1-3-13

As I mentioned yesterday I am going to try to do something a little different for the start of the 113^th Congress, I will be reporting the bills that look like they might be of interest to the readers of this blog as they are introduced but before I actually have a chance to see the official versions of the bill.

So on the first day of the first session of the 113^th Congress Members of the House introduced 131 bills; three of which might be of interest here. Those bills are:

HR 68 - CFATS

HR 84 – TSA Ombusdman

HR 86 – Cybersecurity Education

The CFATS bill was introduced by Rep. Jackson-Lee (D,TX) who introduced a similar bill in the 112^th Congress (HR 225) and in the 111^th Congress (HR 261). In neither case was the bill considered in Committee. It is unlikely that this version will make it any further in the legislative process.