• Michael Kennedy Esq.

Never Mistake Activity for Achievement: CFATS Reauthorized Until 2023

Yesterday, after years of planning, the U.S. House of Representatives passed legislation reauthorizing the U.S. Department of Homeland Security’s (DHS) Chemical Facility Anti-Terrorism Standards (CFATS) program for three years following initial action by the U.S. Senate, which was set to expire on July 23, 2020. It is anticipated that the President will sign S. 4096 into law, thus extending the program through July 27, 2023.

Compared to my experience with previous CFATS reauthorizations, Congress could have done much more. Despite the accolades from industry groups, Congress has had since 2017 to work on improvements to CFATS, but some Congressional members just kicked the can down the road. First, by threatening to eliminate the program, then claiming that there should be separate non-partisan bills, and lastly, asking for GAO reports that unveiled nothing substantive. The end result was a straight three year reauthorization, which the House collectively proposed in 2018.

The CFATS program could have:

  1. 1. Included stronger cyber security measures

  2. Eliminated the Expedited Approval Process, which was rarely used

  3. Resolved the litigated fuel mixture issue

  4. 4. Included active shooter and insider threat programs into security plans

  5. Provided some structure to first responders regarding information sharing

  6. Acknowledged recognition programs such as: ACC’s Responsible Care, NADC’s Responsible Distribution and ARA & TFI’s ResponsibleAg programs.

  7. Resolved whistleblower issues

  8. Provided common sense exemptions for some industries (See previous article on proposed provisions)

It will only take one terrorist related incident to expose these omissions. Disagreements as to the direction and continuation of the CFATS program were always apparent (see Carper/Johnson exchange), but they were not insurmountable. The substantive nature of the issues, like whistleblower and information sharing could have developed into a decent final product. With proper leadership, and dedicated stakeholders, compromise could have happened, but it didn’t.

Overall, provided it becomes law, the CFATS reauthorization gives industry a much-need certainty for the next three years – that was the main goal, but the program was not modernized. The CFATS cyber program is just one of the prime examples above. Many stakeholders knew substantive reauthorization would be a challenge, but at least there was a process in place and willing participants.

Now with CFATS behind us, the same Congressional committees will begin to work on a solution toward preventing the illegal use of chemical precursors used for Improvised Explosive Devices. This would replace the failed Ammonium Nitrate Registration program, but this time there will be no opportunity to confuse activity for achievement.

“Never mistake activity for achievement.” –John Wooden, UCLA basketball coach of 10 NCAA championships.

Congress should have taken a tip from Coach Wooden. Wooden’s most insightful model to discuss his idea is the methodology he used to prepare, execute, and improve his practices.

Timeline of events:

● 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.

● March 27th, 2019- Continuing Resolution confirmed in the Senate, 3 months. (CFATS) Expiring April 18, 2020.

July 20, 2020- S.4096 passes the House after a confirmed CR in the Senate a week before.

© 2020 Michael Kennedy All Rights Reserved.