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Letter to the Hon. Michael McCaul, the Hon. Greg Walden, the Hon. Bennie Thompson, and the Hon. Frank Pallone - Reform and Reauthorize Program to Protect and Secure Chemical Facilities from Terrorist Attacks

Dear Chairman McCaul, Chairman Walden, Ranking Member Thompson, and Ranking Member Pallone:

We write regarding S. 3405, the Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2018. This bill will reauthorize the Chemical Facility Anti-Terrorism Standards (CFATS) program at the Department of Homeland Security (DHS) with commonsense reforms to secure chemical facilities while reducing the regulatory burden on the private sector.

During the 113th Congress, the Senate Committee on Homeland Security and Governmental Affairs, House Committee on Homeland Security, and House Committee on Energy and Commerce worked together to reauthorize and reform the CFATS program, although the reauthorization is set to expire in January 2019. At that time, the CFATS program faced significant challenges, including long backlogs to review security plans, a flawed tiering methodology, program management issues, and questions about whether the program was effectively reducing risk and enhancing security.

The CFATS program currently regulates over 3,000 chemical facilities nationwide. Although DHS has improved its management of the CFATS program over the past four years, such as eliminating the estimated nine-year backlog of reviewing facilities' unique site security plans, it is evident that the program needs additional reforms. On June 12, 2018, the Senate Committee on Homeland Security and Governmental Affairs held a roundtable that included DHS, the U.S. Government Accountability Office, a CFATS chemical inspector, and a variety of companies and industry groups.

During the roundtable, stakeholders provided feedback on how to further improve the CFATS program. For example, industry stakeholders expressed concerns about duplicative regulatory regimes between DHS and the Bureau of Alcohol, Tobacco, Firearms, and Explosives; advised that DHS should not make terror screening mandatory for Tier 3 and Tier 4 facilities; complained about inadequate communication from DHS about changes in facilities' tiering; and discussed how a CFATS recognition program can provide greater regulatory relief. We also heard from a CFATS chemical inspector on basic and continuous training issues and need for improvement, particularly with respect to cybersecurity. In addition, the Committee's oversight has shown a need for DHS to report on new metrics that will show if the program is effectively measuring risk reduction and addressing the current threat environment.

Incorporating this feedback from CFATS stakeholders, Chairman Johnson introduced S. 3405 on September 4, 2018. Senator Capito is a cosponsor. S. 3405 reauthorizes the CFATS program for five years and brings much-needed regulatory relief to the U.S. chemical industry while effectively balancing safety and security. On September 26, 2018, the Senate Committee on Homeland Security and Governmental Affairs unanimously reported S. 3405 favorably by voice vote. On September 28, 2018, Rep. Katko, Rep. Moolenaar, and Rep. Cuellar introduced H.R. 6992, a bipartisan House companion.

In the coming weeks, we hope the committees of jurisdiction will continue to work together, as they have throughout this Congress, to find areas of agreement to reauthorize and improve the CFATS program. The purpose of the reauthorization process must be to improve federal regulatory programs incorporating lessons learned from Congressional oversight. S. 3405 provides a path for the CFATS program to continue for an additional five years without inflicting burdensome and duplicative regulations on DHS's industry partners. If Congress fails to reform the CFATS program, we believe the program should expire and not continue to be reauthorized via annual appropriations.

We look forward to working with you to reauthorize the CFATS program with commonsense reforms before the conclusion of the 115th Congress. Thank you for your attention to this important subject.


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