Senate Approves Temporary CFATS Reauthorization: Issues Loom
On December 19th 2019, the Chemical Security Facility Anti-Terrorism Standards (CFATS) program, set to expire January 9th, 2019, received a temporary renewal of reauthorization in the Senate. Rolled in with the controversial border security wall, and with the equivalent drama, it was attached to a continuing resolution* and lumped together with other issues not related to chemical security. With confidence high, it will pass the House of Representatives by the end of the week thus prolonging its expiration date to February 8, 2019.
Disagreements as to the direction and continuation of the program still exist (See Carper/Johnson exchange) . With the House turning over to Democratic control, can a deal be struck continuing the program? If so, for how long? And, what changes will reform the program? (See previous article on proposed provisions)
With little time to spare, a unified House proposed a two year straight reauthorization, but this was not accepted by Chairman Ron Johnson in the Senate. Johnson received a letter from DHS to issue a short term reauthorization, but Sen. Johnson, known for cutting red tape is set on passing his bill (S. 3405), hence the two month extension. However, with a Democratic House in January the power dynamic will change.
How this will play out for the program? Is still up in the air.
About the Author:
Michael Kennedy, Principal Attorney at Kennedy Law & Policy, has spent most of his career developing and evolving homeland security laws to adapt to the private sector. He's a recognized expert in Chemical Facility Anti-Terrorism law and in all aspects of the regulation. Kennedy was also the main contributor to the Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2014 (the Act) which Kennedy advocated before Congress that was later signed by President Barack Obama on Dec. 18, 2014. He has advised three trade associations on critical infrastructure issues, served twice as the Assistant Chair of the Chemical Sector Coordinating Counsel and was a liaison to the Federal Bureau of Investigation, Department of Homeland Security and Department of Defense.
Sept. 4, 2018: Sen. Ron Johnson (R-Wis.), introduced S. 3405, the Protecting and Securing Chemical Facilities from Terrorists Attacks Act of 2018 (S.3405).
Sept. 26, 2018: S. 3405 was unanimously reported out of the Senate Committee on Homeland Security and Governmental Affairs by voice vote.
Sept. 28, 2018: Rep. John Katko (R-N.Y.), Rep. John Moolenaar (R-Mich.), and Rep. Henry Cuellar (D-Texas) introduced H.R.6992 - Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2018, a bipartisan House companion.
Oct. 23, 2018: Sen. Johnson and Sen. Shelley Moore Capito (R-W.Va.) draft a letter to other homeland security committees vowing: “If Congress fails to reform the CFATS program, we believe the program should expire and not continue to be reauthorized via annual appropriations.”
November 29th, 2018- DHS sends a letter to Sen. Johnson for a short-term reauthorization
November 29th, 2018 Rep. Ratcliffe, John (R-TX) introduces HR. 7188 “Chemical Facility Anti-Terrorism Standards Program Extension Act”, which would reauthorize the program for two years.
December 19, 2018 – Continuing Resolution confirmed in the Senate, 2 months. Expiring February, 8 2019.
‘‘SEC. 138. The authority provided under title XXI of the Homeland Security Act of 2002 (6 U.S.C. 621 et 13 seq.), as amended by section 2(a) of the Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2014 (Public Law 113–254), shall continue in effect through the date specified in section 105(3). “[105(3) and inserting ‘‘February 8, 2019’’ ]
* A continuing resolution (CR) is a type of appropriations legislation, which appropriates money to specific federal government departments, agencies, and programs. The money provides funding for operations, personnel, and activities.