Survey of the Progress of the DHS Chemical Facility Anti-Terrorism Standards Implementation

Ten years following the terrorist attacks on the United States in 2001, security at the Nation’s chemical facilities remains a key concern. At issue is the effectiveness of existing federal regulations to reduce the risks of terrorist acts against the chemical sector, and whether these regulations should be extended by Congress. To address these questions, a landmark survey of a significant number of facility owners subject to the Chemical Facility Anti-Terrorism Standards (CFATS) regulations was conducted on behalf of the American Chemistry Council, by the AcuTech Consulting Group, from July to August, 2011. The purpose was to determine the regulated community’s views of the program, to determine actions taken to address the regulations, and to derive possible suggestions for improvement.

CFATS has now been in existence for just over four years. It is notable that the US Department of Homeland Security was able to launch such an ambitious regulatory regime in the 18 months mandated by Congress. CFATS was also the Department's first security-specific regulation for critical infrastructure and key resources and was a unique regulation in that it defines an outcome based on risk and performance. This ground-breaking program required new and creative thinking to address the many uncertainties and to offer a solution to the complex task of having a regulation that was both effective and commensurate with the threat. While implementation of the program has not been without some challenges, the overall strategy of CFATS is reported by the survey respondents to be one that they want to continue as evidenced by their message to have Congress extend the program.

As debate continues on the extension of CFATS, this survey was intended to provide constructive feedback and useful date to Government and industry in the interest of improving the Nation’s chemical security. Several valuable insights were gained by the survey. The sheer magnitude of the challenge of regulating the chemical sector in such a new and comprehensive way will require additional time and focused attention to prove its full value. The uncertainty of CFATS future and lingering delays in clearing-up a backlog of plan approvals and inspections appears to be stymieing progress.

The feedback by industry indicates that CFATS legislation is having at least some of the desired effect, and has the potential to improve security at the Nation’s chemical facilities. Yet while the concept seems to be supported by industry, more work remains to be done in maturing the implementation of the CFATS program at DHS. In particular, the survey clearly indicates there is a need for DHS to clear up the backlog of approvals and inspections and to improve the clarity of guidance provided to industry so that industry can benefit from regular and timely feedback from DHS. Correcting this is likely to result in substantially greater confidence in the means of achieving the RBPS. This will further benefit the Department, which is no doubt eager to have all CFATS-regulated facilities operating under a fully-implemented and inspected security program.  Adding to the additional complexity of new initiatives, such as adding mandates for safer technologies and chemicals, could exacerbate the implementation issues that industry reported. It was reported that expanding CFATS into the realm of mandated chemical substitution and alternative technology was reported to likely drive some facilities to close, or move operations overseas.