House Introduces CFATS Reauthorization Bill, Senate Bill Advances
October 9, 2018
On Sept. 28, a bill to reauthorize for five years the Chemical Facility Anti-Terrorism Standards (CFATS) program, administered by the U.S. Department of Homeland Security (DHS), was introduced by Rep. John Katko (R-N.Y.) in the U.S. House of Representatives. The legislation, H.R. 6992, is a companion bill to a Senate bill, S. 3405, The Protecting and Securing Chemical Facilities from Terrorist Attacks Act, that would extend CFATS beyond the current January 2019 sunset date. The Senate Homeland Security and Governmental Affairs Committee on Sept. 26, passed the bill, sending it to the full Senate for consideration.
Notably, the House of Representatives is out of session until after the midterms. The House will reconvene on Nov. 13.
ACA supports reauthorization, recently urging Congress to act swiftly to provide for a multi-year extension. CFATS is an important program aimed at preventing chemicals from being stolen, diverted, sabotaged, or deliberately released by terrorists or other bad actors. DHS CFATS regulations were issued as a final rule in November 2007; however, DHS implements the CFATS program under a variety of short-term authorizations by Congress.
Under CFATS, chemical facilities possessing more than a threshold amount of specific explosive, toxic, or other “chemicals of interest” determined by DHS, are required to complete a “top-screen,” notifying DHS that they possess such chemicals on site. Once a facility submits its top-screen, DHS can direct the facility to submit a Security Vulnerability Assessment (SVA). The SVA provides the basis for DHS to assign the facility to one of four tiers: Tiers 1 and 2 being the highest risk, and Tiers 3 and 4 being the lowest. Tier assignment triggers a requirement to submit a Site Security Plan (SSP) or an Alternative Security Plan (ASP) to DHS for authorization and approval.
CFATS currently covers approximately 3,400 chemical facilities, which have been assessed to present a risk of terrorist attack or exploitation.
In addition to reauthorizing CFATS for five years, the proposed legislation also reforms the current CFATS program in the following ways:
- Grants a request by the explosives industry to be exempted from the requirements in favor of existing regulations by the federal Bureau of Alcohol, Tobacco, Firearms and Explosives;
- Prevents DHS from inspecting a facility more often than once every two years, or every three years if it’s in a new voluntary recognition program;
- Allows Tier 3 and Tier 4 facilities to opt out from a requirement that they submit employee information to be screened for terrorist ties; and
- Requires DHS to conduct a formal rulemaking if it adds new chemicals to the program and would give facility operators more information explaining how they were evaluated for security risk.
These changes comport with some of the effective solutions ACA suggested to implement and improve chemical security. ACA submitted recommendations to Congress for CFATS enhancements compiled from ACA’s member companies, who own and operate paint, coatings, resin, or chemical manufacturing facilities. Some of these facilities are subject to CFATS, with a clear majority being classified as Tier 4 facilities, while just a few are Tier 3.
Specifically, ACA sought the following:
- Greater transparency for CFATS tiering determinations and security plan review;
- Focus on risk-based determinations for personnel surety requirements;
- Regular review of the “chemicals of interest” list; and
- Improved coordination for CFATS with other federal chemical security and safety regulatory programs.
ACA considers CFATS a necessary regulatory scheme to help industry and communities be safer and more secure, and as such, urges Congress to pass long-term reauthorization of the CFATS program. ACA is eager to work with Congress and DHS as it considers ACA’s recommendations, which would give industry regulatory certainty and stability to make prudent risk management decisions and investments.