GOP Leaders Threaten To Cut Funding For CFATS Program

Jul 22: House Energy and Commerce Committee Chairman Fred Upton (R-MI), Homeland Security Committee Chairman Michael McCaul (R-TX), and Homeland Security Appropriations Subcommittee Chairman John Carter (R-TX) wrote to U.S. Secretary of Homeland Security Janet Napolitano regarding the Chemical Facilities Anti-Terrorism Standards (CFATS) program. The House Republican leaders expressed "serious reservations" about extending funding for the program unless significant progress is made. The committee leaders are requesting a series of reports from the Department of Homeland Security to assist with oversight, specifically examining how the Infrastructure Security Compliance Division (ISCD) plans to improve implementation of the program.

    They wrote, "The Government Accountability Office (GAO), the Department of Homeland Security (DHS) Office of Inspector General, and the DHS Office of Infrastructure Protection itself have all recognized that, over the past five years, DHS's ineffectual management and implementation of the CFATS program has frustrated the Department's critical mission to secure America's facilities containing chemicals of interest. As the authorizers and appropriators of this program, we write to you to express serious reservations about continuing to extend CFATS funding without evidence of substantial programmatic improvement. The basic programmatic building blocks of CFATS are missing, and we are running short on both patience and confidence with regard to the Department's ability to correct its deficiencies."

    The lawmakers pointed to flaws in the program's risk evaluation system, compliance hurdles, implementation delays, and the failure of the program to identify vulnerable facilities as highlighted by the West, Texas fertilizer plant explosion. The letter continued, "Unfortunately, problems with the Department's efforts to implement these programs are not limited to those discussed here. As the Chairmen responsible for authorizing and funding CFATS, we are convinced the program should not continue in its present condition. While the need to secure American facilities with chemicals of concern is a critical one, the CFATS program is simply not getting the job done. … Over the course of this fiscal year, the Energy and Commerce Committee and the Homeland Security Committee will continue the rigorous oversight and strict guidance needed to get CFATS on track. We intend to identify specific milestones the program must achieve in order to establish its viability. Ultimately, we would like to consider a multi-year reauthorization of CFATS -- but only if it is the right program for the job."

    Also in their letter the GOP members point out that despite the "flawed risk methodology, thousands of facilities across the country have attempted to comply with CFATS requirements by submitting their initial risk assessment information (the top screen), and have been assigned a final tier. These facilities have invested time and resources into the development of their site security plans. Yet, GAO estimates it could take up to nine years for the Department to review these plans and certify each facility's security. Within that time, technology changes, plans become outdated, and facilities remain vulnerable to attack. The scope and pace of this backlog is simply unacceptable. Perhaps the most basic step toward achieving the security of facilities with chemicals of concern is identifying those facilities that are at risk. Yet, even here, the Department has failed to implement an effective process. As the tragic explosion of the West Fertilizer Plant in April brought to light, DHS is unaware of the existence of thousands of small facilities across the country that are potentially covered under the statute. The identification of facilities at risk of terrorist infiltration is the very foundation of the CFATS program."

    Concern about the program extends across party lines. In March at an Energy and Commerce (E&C) Committee hearing to provide and update on CFATS, Ranking Member Henry Waxman (D-CA) said in an opening statement, "Since 2001, federal officials, the Government Accountability Office (GAO), and outside experts have warned that the nation's drinking water utilities and chemical facilities remain vulnerable to terrorist attack.

    "Unfortunately, the CFATS program is a grave disappointment. At the end of 2011, we learned the program was in disarray. No facilities had approved site security plans. Homeland Security officials felt their enforcement authority was insufficient and ineffective. There were no procedures in place to document important programmatic decisions. No one on staff was even qualified to conduct a compliance inspection. . ."

    Rep. Waxman said, "CFATS was created in the sloppiest legislative fashion possible. It was established in 2006 by a provision tucked into an appropriations bill without the benefit of hearings or markups by the Committee." But, he continued, "The problems with the program are not all Congress' fault. Both the current and previous administrations have failed to implement the program effectively. The Department issued an interim final rule within six months of the law's passage. This rule determined what chemicals might be targets, how risk would be assessed, and what security standards would be applied. Given the quick action and limited statutory guidance, the rule was flawed. But now – six years later – it still hasn't been updated and improved." 

    Access a release from the Republican leaders and link to the complete letter (click here). Access DHS CFATS website for more information including facilities covered and a list of chemicals of interest (click here). Access a March 14 GOP E&C hearing on CFATS Update with video and links to testimony (click here). Access a March 14 Democrats E&C hearing on CFATS Update with video and links to testimony (click here). [#Toxics, #Haz]