INSIGHT: No end in sight for lapse of US chemical anti-terrorism program

HOUSTON (ICIS)–The US is about to go six months without the authority to implement its main site security and anti-terrorism program for chemical facilities. This shortcoming leaves plants vulnerable to attacks and the industry exposed to states taking matters into their own hands by adopting a mishmash of individual site-security laws.

• Trade groups warn that the lapse leaves chemical plants and distribution centers more vulnerable to outages and disruptions caused by terrorist attacks
• The program had increased collaboration between plants and emergency responders during natural disasters
• The senator that opposes the program has shown no signs of allowing a new bill to come to a vote

END OF CFATS IMPLEMENTATION
The site security program is called the Chemical Facility Anti-Terrorism Standards (CFATS), and it is overseen by the Cybersecurity & Infrastructure Security Agency (CISA), which is under the Department of Homeland Security (DHS).

CISA lost authority to implement CFATS on July 28, 2023, when a bill that would have re-authorized it was blocked from going to a vote in the Senate.

While CISA is no longer authorized to implement CFATS, the program continues to be funded by the government. That has allowed the agency to maintain its CFATS staff, who continue to work on other chemical security projects outside of CFATS.

The hope is that if the program is re-authorized, the staff can resume work on projects and duties specific to CFATS.

The danger is that Congress may suspend funding for a program the government is not authorized to implement. The staff would disperse, making it much more difficult to restart CFATS in the event of re-authorization.

Regardless of the fate of the funding, CISA cannot implement CFATS, and the chemical industry no longer has access to services that it says improved the security of their plants and distribution centers.

NO MORE VETTING PEOPLE AGAINST TERRORIST DATABASE
With the lapse of CFATS, chemical and fertilizer companies lost the ability to vet personnel against a database of terrorists maintained by the US Federal Bureau of Investigations (FBI).

Under CFATS, companies would vet an average of 300 names/day, said Kelly Murray, associate director for chemical security at CISA. She made her comments in a briefing hosted by the American Chemistry Council (ACC) and attended by other chemical and fertilizer trade groups.

Such vetting ceased on July 28 when CFATS authorization ended. By January 28, 54,000 people who sought access to such areas would have gained it without being vetted against the FBI’s terrorist database.

Murray listed other security measures that chemical companies lost with the expiration of CFATS authorization.

• CISA cannot require chemical facilities to report chemicals of interest, which terrorists or other bad actors can use
• CISA can no longer enforce compliance of CFATS regulations
• CISA cannot perform inspections. The agency is on track to miss its 900th inspection on 28 January

Murray said those inspections led to improvements in site security, such as the addition of alarms, gates, locks and cybersecurity monitoring.

ABSENCE OF CFATS DISRUPTS BUSINESS
Some fertilizer companies cannot do business with new distributors because they cannot complete the required security clearing through CISA, said Corey Rosenbusch, CEO of The Fertilizer Institute (TFI), a trade group.

Retailers are running into problems when farmers want to plant new crops that require different agrochemicals, Rosenbusch said. If the substance contains a chemical of interest and the retailer does not handle it, they cannot complete the vulnerability assessments without CFATS. The farmer cannot get the agrochemical needed for the crops.

STATES MAY ADOPT INDIVIDUAL CFATS PROGRAMS
States with chemical and fertilizer facilities are losing patience and have started proposing bills that would create their own site-security programs.

In January, Nebraska State Senator Eliot Bostar introduced LB1048, which would require certain chemical facilities to comply with the federal chemical security program.

Trade groups are concerned that other states could introduce legislation that could create their own programs. Chemical and fertilizer companies could face a patchwork of regulations that would make compliance more expensive.

Another worry is that site security could fall under a different federal agency. The trade groups said CISA is the best agency to oversee the program because it is part of the Department of Homeland Security, which was created to prevent terrorist attacks against the US.

TOUGH PROSPECTS FOR RE-AUTHORIZATION
The senator who blocked the CFATS re-authorization bill is Rand Paul, (Republican-Kentucky), and he has yet to relent in his opposition to the program.

Paul remains the main obstacle that has prevented Congress from approving a standalone bill to re-authorize the program, said Eric Byer, CEO of the Alliance for Chemical Distribution, the new name of the National Association of Chemical Distributors (NACD).

From what the ACD has heard from leaders in Congress, Paul has shown little interest in having any discussion about CFATS, Byer said.

Paul’s office did not immediately respond to a request for comment.

In 2023, Paul defended his opposition to the CFATS program during a speech.

“How did it work before the government got involved?” Paul asked during the speech. “Well, companies had to insure things. If you had a hundred million dollar electric plant and it was at risk for sabotage or fire or disruption to the community, you had insurance, and insurance required that you have a fence.”

Despite Paul’s opposition, CFATS enjoys broad bipartisan support. The re-authorization bill passed the House of Representatives with only one dissenting vote. It enjoys nearly the entire support of the Senate, according to the speakers at the briefing.

Congress continues to signal support for CFATS by maintaining funding for the program.

With that, trade groups are exploring any and all means to find a way to get CFATS approved, Byer said in comments after the briefing.

Still, time is running out to pass something in 2024. This is an election year, and Congress has about six months before campaigning takes over.

US CHOSE BAD TIME TO SUSPEND SECURITY PROGRAM
Congress allowed the CFATS program to lapse amid worries about US border security, which could allow bad actors to slip into the country.

The support for CFATS expressed by chemical and fertilizer trade groups have placed them in the awkward situation of advocating for more regulations – something stressed by the heads of the ACC, the ACD, the TFI and the American Fuel & Petrochemical Manufacturers (AFPM).

While chemical companies have strong security programs, they still need the information and expertise that only the Department of Homeland Security can provide through CFATS, said Chris Jahn, CEO of the ACC.

“We are doing it for a simple reason, and this that CFATS is effective, it’s reasonable, it’s cost effective, it’s collaborative, it’s a great private and public partnership,” said Chet Thompson, the CEO of the AFPM, a group more accustomed to warning about the dangers of too much regulation.

Insight by Al Greenwood

Thumbnail shows a padlock, one of the devices used to secure sites. Image by Evgenia Parajanian.