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Thursday, December 8, 2022

The Importance of CFATS and Securing Critical Chemical Industry Infrastructure

There have been many differences of opinion in this presidential election year, but one thing we can all agree on is that 2020 has been a year like no other. As industries, organizations, and individuals across the country recognize National Critical Infrastructure Security and Resilience Month, this is a good opportunity to reflect on the tools and assets that have helped critical industries and the nation adapt thus far, and what we need to successfully secure our nation’s critical infrastructure for the future.

When the coronavirus pandemic hit, the Department of Homeland Security (DHS) promptly issued guidance naming the chemical industry as an essential critical industry and workforce. Making sure products needed for the energy sector, water treatment, food supply, pharmaceuticals, and so much more to keep our economy running and our communities healthy is what the chemical distributors and affiliates who are a part of the National Association of Chemical Distributors (NACD) proudly do every day. This role was even more important to keep American communities safe during the COVID-19 crisis.

As governments, businesses and individuals navigated their way through the pandemic, an important milestone for the chemical distribution industry and our nation approached – reauthorization of the Chemical Facility Anti-Terrorism Standards (CFATS) program. CFATS applies to facilities across many industries – chemical manufacturing, storage, and distribution, energy and utilities, agriculture and food, explosives, mining, electronics, plastics, universities and laboratories, paint and coatings, healthcare, pharmaceuticals, and others. The Cybersecurity and Infrastructure Security Agency (CISA) manages CFATS by working with covered facilities to ensure they have security measures in place to reduce the risks associated with certain hazardous chemicals and prevent them from being exploited in a terrorist attack.

While COVID response and protecting against potential acts of terrorism may not immediately seem linked, those of us who manufacture, store, use, or transport hazardous chemicals know that it’s even more important to remain diligent and secure during a crisis, whether that’s a pandemic, a weather event, or some other unexpected emergency situation.

NACD members and others in the chemical industry were particularly well-positioned to continue supporting the health and safety of their workers while operating as essential businesses due in large part to the planning and preparation required by the various environmental health, safety, and security (EHS&S) programs many in the chemical industry adhere to, including NACD Responsible Distribution.® We were prepared to keep the hazardous chemicals we handle safe and secure thanks to the CFATS program.

Despite the successful implementation and progress made during the Congress’ 2014 four-year authorization of the program, each successive extension since the program was first to sunset in 2018 had become shorter. These short-term extensions did not allow the regulated community to properly plan for investing in future security improvements and did not send the appropriate message about securing America’s chemical security infrastructure. Fortunately, Congress acknowledged the importance of CFATS even in the midst of addressing a worldwide pandemic, initially approving a short-term three-month extension of the program ahead of its expiration in April 2020 and later passing a multi-year extension through July 27, 2023.

The last several years of short-term reauthorizations make this three-year reauthorization particularly welcome but in spite of the disruption of ongoing short-term reauthorizations, NACD and many others who depend on CFATS agree that periodic review with congressional oversight is key. Without regular scrutiny of the CFATS program, it may not be the dynamic and indispensable program it is today, and we could find the program less likely or even unable to delve into issues that arise over the years as more essential to our facility security, like cybersecurity and drone management.

However, ongoing short-term extensions create too much uncertainty for regulators and industry alike, putting the security of our nation’s chemical industry infrastructure at risk. We hope that the ability to get the program reauthorized with a unanimous vote in the House and by unanimous consent in the Senate, in the midst of a pandemic, in a presidential election year fraught with partisan wrangling, signals a future commitment of House and Senate leadership to make national security a top priority and work together in the future in a bipartisan way toward multi-year extensions of the CFATS program.

And, while the CFATS program is critical, there is work to be done between now and the next reauthorization. As the nation’s first and only regulatory program focused specifically on security at high-risk chemical facilities, regulators and industry must work together to make sure it is laser-focused on its important mission and help make it stronger and more effective for the future. There are still areas among the Risk-Based Performance Standards (RBPS) that can be clarified, including the process for what security measures facilities should take based on potential threat increases. The ongoing supply of chemicals and associated services is critical in times of emergency; therefore, simply ceasing operations is not a viable option for businesses during times of higher risk.

Protecting confidential information is another area of ongoing discussion. As important as it is to coordinate and share information with emergency responders, it is equally important to only provide the facilities’ sensitive security information on a need-to-know basis. The current Chemical-terrorism Vulnerability Information process has the correct balance to ensure facilities communicate and share need-to-know information with those agencies to enable them to respond effectively. During the inspections process, all DHS inspectors verify that the facility has performed its yearly requirement for outreach with local responders and will not approve the facility’s site security plan (SSP) if this outreach has not occurred. The current CFATS requirements, combined with the many other information-sharing requirements the chemical distribution industry and others share with the EPA, OSHA, and DOT, appropriately address public safety and facilitate the proper level of dialogue between regulated entities and the public and should remain in their current form.

Many CFATS-regulated industries would also welcome consideration of incorporating verified industry-standard programs, such as NACD Responsible Distribution, ACC Responsible Care, Responsible AG, and others into the evaluation of whether a facility has met the intent of the applicable RBPS. Participants in these robust industry stewardship programs have made a strong commitment to operate their facilities safely and securely. Recognizing these responsible companies through simple measures like less-frequent inspections would allow DHS to prioritize resources to concentrate on the “outliers” or bad actors that don’t participate in these programs and that may pose a greater security risk to themselves or the population at large. It could also free up more time for the ongoing training programs that CISA inspectors ask for and need.

While there are issues to address and refinements to be made, CFATS is a success story. The program has grown and strengthened as DHS and industry collaborate to keep facilities secure. The DHS CFATS program has been looked upon at the international level as a model program for developing security programs within the G7 Global Congress and the Partnership Against the Spread of Weapons and Materials of Mass Destruction. CFATS is recognized globally as a model chemical-security framework, and DHS frequently responds to requests to work with other governments as they seek to build cultures of chemical security on a par with the security-culture CFATS has cultivated in the United States.

Furthermore, the threat that gave rise to CFATS remains, and the program continues to adapt to the shifting threat environment. At the critical level, bad actors still troll for hazardous chemicals to use for attacks against our country. On an operational level, consultation with CFATS regulators helps facilities handling hazardous chemicals prioritize security when making day-to-day decisions like siting new physical structures. We at NACD look forward to working with CISA so this program continues to serve as a powerful tool to keep our nation, businesses, employees, and communities safe from the threat of terrorism now and in the future.

Eric R. Byer
Eric R. Byer is president and CEO of the National Association of Chemical Distributors, an association of more than 400 companies that provide products to approximately 750,000 end users in industries as diverse and essential as sanitation, construction, healthcare, electronics, pulp and paper, water treatment and many others.

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