In a party line vote June 19, Democrats on the House Homeland Security Committee approved a bill to extend the expiring Chemical Facility Anti-Terrorism Standards Program. The Committee’s action is the first step in a long process that is expected to end in the reauthorization of the CFATS program sometime early next year.
ILTA and the CFATS Coalition did not support the House Homeland Committee legislation. ILTA remains actively engaged with the House and Senate Committees and with the Department of Homeland Security to find a workable compromise.
Lawmakers voted 14-12 in favor of the Protecting and Securing Chemical Facilities from Terrorist Attacks Act (H.R. 3256). The bill would extend the DHS' CFATS program for five years. During the markup, both Republicans and Democrats agreed with the ILTA position that a long-term extension was important for program stability and to aid companies making security investments.
Prior to 2014, DHS had been implementing the CFATS program under a series of short-term Congressional authorizations. In the 2014 reauthorization, Congress approved a four-year extension. This January, Congress approved a 16-month extension of the program just days before it was set to expire. Now both parties are trying to find a way to strike a longer-term deal before the program faces that threat again in April 2020.
Committee Republicans unanimously opposed the House Homeland Security Committee bill, contending that the vote was premature because the bill could not secure bipartisan support on the House floor in its current form. Republicans also opposed, among other things, the bill’s language to require Homeland Security officials to consider additional consequences of an attack on a facility, rather than just its potential for loss of human life.
ILTA supports long-term reauthorization of CFATS, a critical program aimed at preventing chemicals from being stolen, diverted, sabotaged or deliberately released by terrorists. However, it continues to oppose the expansion of CFATS into areas unrelated to protection against terrorism.
ILTA continues to work with the House, Senate and DHS to harmonize the written regulations with the current DHS policy for the treatment of gasoline, diesel, kerosene, jet fuel and other flammable mixtures under CFATS. DHS’s written regulations only include flammable liquids as "chemicals of interest” if they have a National Fire Protection Association Class 4 (extremely flammable) rating. However, the regulations include a notable and problematic exception covering mixtures such as gasoline (Class 3) and diesel, kerosene and jet fuel (Class 2) that can contain Class 4 COIs, but that do not exhibit the same high-risk characteristics for which those COIs were designated.
In 2010, ILTA challenged DHS on this exception. Faced with overwhelming scientific evidence, DHS has not required facilities that possess only gasoline, diesel, kerosene and jet fuel to file a "top-screen" report in nearly a decade. Therefore, in practice, DHS recognizes the lower risk associated with gasoline and other fuel blends relative to other materials listed as COIs. At the same time, the written regulatory treatment of gasoline and fuel blends has not changed and remains out of step with current DHS enforcement practice and the most authoritative standard for classifying flammable materials, creating uncertainty for ILTA member companies.
Despite industry’s efforts over nearly a decade, DHS has not changed the underlying written regulations. Apparently, DHS simply has not wanted to undertake the lengthy notice and comment rulemaking that would be necessary to change the regulations. As a result, only action by Congress can ensure that gasoline and other flammable mixtures continue to receive appropriate treatment in CFATS enforcement under this and all future administrations. ITLA is working to fix the issue during reauthorization.
The committee-passed legislation now will go to the House Energy and Commerce Committee for further consideration and then to the House floor for a vote. Concurrently, the Senate Homeland Security and Governmental Affairs Committee will consider its own version of similar legislation that, if passed, will go to the Senate floor. The House and Senate bills will likely be significantly different, which would require representatives from both chambers to meet to hash out a final version of the legislation.