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H.R. 908, A BILL TO EXTEND THE AUTHORITY 

OF THE SECRETARY OF HOMELAND SECURITY 

TO MAINTAIN THE CHEMICAL FACILITY ANTI– 

TERRORISM STANDARDS PROGRAM 

HEARING 

BEFORE THE

SUBCOMMITTEE ON ENVIRONMENT AND THE 

ECONOMY 

OF THE

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

MARCH 31, 2011 

Serial No. 112–28 

( 

Printed for the use of the Committee on Energy and Commerce 

energycommerce.house.gov 

COMMITTEE ON ENERGY AND COMMERCE 

FRED UPTON, Michigan 

Chairman 

JOE BARTON, Texas 

Chairman Emeritus 

CLIFF STEARNS, Florida 

ED WHITFIELD, Kentucky 

JOHN SHIMKUS, Illinois 

JOSEPH R. PITTS, Pennsylvania 

MARY BONO MACK, California 

GREG WALDEN, Oregon 

LEE TERRY, Nebraska 

MIKE ROGERS, Michigan 

SUE WILKINS MYRICK, North Carolina 

Vice Chair 

JOHN SULLIVAN, Oklahoma 

TIM MURPHY, Pennsylvania 

MICHAEL C. BURGESS, Texas 

MARSHA BLACKBURN, Tennessee 

BRIAN P. BILBRAY, California 

CHARLES F. BASS, New Hampshire 

PHIL GINGREY, Georgia 

STEVE SCALISE, Louisiana 

ROBERT E. LATTA, Ohio 

CATHY MCMORRIS RODGERS, Washington 

GREGG HARPER, Mississippi 

LEONARD LANCE, New Jersey 

BILL CASSIDY, Louisiana 

BRETT GUTHRIE, Kentucky 

PETE OLSON, Texas 

DAVID B. MCKINLEY, West Virginia 

CORY GARDNER, Colorado 

MIKE POMPEO, Kansas 

ADAM KINZINGER, Illinois 

H. MORGAN GRIFFITH, Virginia 

HENRY A. WAXMAN, California 

Ranking Member 

JOHN D. DINGELL, Michigan 

Chairman Emeritus 

EDWARD J. MARKEY, Massachusetts 

EDOLPHUS TOWNS, New York 

FRANK PALLONE, JR., New Jersey 

BOBBY L. RUSH, Illinois 

ANNA G. ESHOO, California 

ELIOT L. ENGEL, New York 

GENE GREEN, Texas 

DIANA DEGETTE, Colorado 

LOIS CAPPS, California 

MICHAEL F. DOYLE, Pennsylvania 

JANICE D. SCHAKOWSKY, Illinois 

CHARLES A. GONZALEZ, Texas 

JAY INSLEE, Washington 

TAMMY BALDWIN, Wisconsin 

MIKE ROSS, Arkansas 

ANTHONY D. WEINER, New York 

JIM MATHESON, Utah 

G.K. BUTTERFIELD, North Carolina 

JOHN BARROW, Georgia 

DORIS O. MATSUI, California 

DONNA M. CHRISTENSEN, Virgin Islands 

SUBCOMMITTEE ON ENVIRONMENT AND THE ECONOMY

JOHN SHIMKUS, Illinois 

Chairman 

TIM MURPHY, Pennsylvania 

Vice Chairman 

ED WHITFIELD, Kentucky 

JOSEPH R. PITTS, Pennsylvania 

MARY BONO MACK, California 

JOHN SULLIVAN, Oklahoma 

CHARLES F. BASS, New Hampshire 

ROBERT E. LATTA, Ohio 

CATHY MCMORRIS RODGERS, Washington 

GREGG HARPER, Mississippi 

BILL CASSIDY, Louisiana 

CORY GARDNER, Colorado 

JOE BARTON, Texas 

FRED UPTON, Michigan (ex officio) 

GENE GREEN, Texas 

Ranking Member 

TOMMY BALDWIN, Wisconsin 

G.K. BUTTERFIELD, North Carolina 

JOHN BARROW, Georgia 

DORIS O. MATSUI, California 

FRANK PALLONE, JR., New Jersey 

DIANA DEGETTE, Colorado 

LOIS CAPPS, California 

JOHN D. DINGELL, Michigan 

HENRY A. WAXMAN, California (ex officio) 

(II) 

(III) 

C O N T E N T S 

Page 

Hon. John Shimkus, a Representative in Congress from the State of Illinois, 

opening statement ................................................................................................ 1 

Prepared statement .......................................................................................... 2 

Hon. Gene Green, a Representative in Congress from the State of Texas, 

opening statement ................................................................................................ 6 

Hon. Tim Murphy, a Representative in Congress from the Commonwealth 

of Pennsylvania, opening statement ................................................................... 7 

Hon. Henry A. Waxman, a Representative in Congress from the State of 

California, opening statement ............................................................................. 8 

Hon. Fred Upton, a Representative in Congress from the State of Michigan, 

prepared statement .............................................................................................. 109 

Hon. Joe Barton, a Representative in Congress from the State of Texas, 

prepared statement .............................................................................................. 111 

WITNESSES

Rand Beers, Under Secretary, National Protection and Programs Directorate, 

U.S. Department of Homeland Security ............................................................. 9 

Prepared statement .......................................................................................... 11 

Answers to submitted questions ...................................................................... 113 

Andrew K. Skipp, President and Chief Executive Officer, Hubbard-Hall, Inc., 

on behalf of the National Association of Chemical Distributors ...................... 54 

Prepared statement .......................................................................................... 56 

Answers to submitted questions ...................................................................... 121 

David C. Tabar, CSP, Global Director of Safety, Sherwin-Williams Company, 

on behalf of the American Coatings Association ............................................... 65 

Prepared statement .......................................................................................... 67 

Answers to submitted questions ...................................................................... 124 

William E. Allmond IV, Vice President, Government Relations, Society of 

Chemical Manufacturers and Affiliates ............................................................. 73 

Prepared statement .......................................................................................... 75 

Answers to submitted questions ...................................................................... 125 

James S. Frederick, Assistant Director, Health, Safety, and Environment, 

United Steelworkers ............................................................................................ 82 

Prepared statement .......................................................................................... 85 

SUBMITTED MATERIAL

H.R. 908, A Bill to extend the authority of the Secretary of Homeland Security to maintain the Chemical Facility Anti-Terrorism Standards program .. 4 

Letter of March 28, 2001, from Randall S. Dearth, President and CEO, 

LANXESS Corporation, to Mr. Murphy ............................................................. 38 

Letter of March 30, 2011, from Cal Dooley, President and CEO, American 

Chemistry Council, to Mr. Shimkus and Mr. Green, submitted by Mr. 

Murphy .................................................................................................................. 39 

Letter of March 29, 2011, from Charles T. Drevna, President, National Petrochemical & Refiners Association, to Members of Congress, by Mr. Green ..... 45 

Written statement of March 31, 2011, from the National Petrochemical & 

Refiners Association ............................................................................................. 47 

Written statement of March 31, 2011, from Hon. Charles W. Dent, a Representative in Congress from the Commonwealth of Pennsylvania ................ 106 

(1) 

H.R. 908, A BILL TO EXTEND THE AUTHORITY 

OF THE SECRETARY OF HOMELAND SECURITY TO MAINTAIN THE CHEMICAL FACILITY ANTI–TERRORISM STANDARDS PROGRAM 

THURSDAY, MARCH 31, 2011 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON ENVIRONMENT AND THE ECONOMY, COMMITTEE ON ENERGY AND COMMERCE, Washington, DC. 

The subcommittee met, pursuant to call, at 9:07 a.m., in room 

2322 of the Rayburn House Office Building, Hon. John Shimkus 

(chairman of the subcommittee) presiding. 

Members present: Representatives Shimkus, Murphy, Whitfield, 

Bass, Latta, McMorris Rodgers, Harper, Cassidy, Gardner, Green, 

Butterfield, Barrow, and Waxman (ex officio). 

Staff present: David McCarthy, Chief Counsel, Environment and 

Economy; Tina Richards, Senior Policy Advisor, Chairman Emeritus; Gerald S. Couri, Senior Environment Policy Advisor; Chris 

Sarley, Policy Coordinator, Environment and Economy; Alex 

Yergin, Legislative Clerk; Jackie Cohen, Democratic Counsel; Greg 

Dotson, Democratic Energy and Environment Staff Director; 

Caitlin Haberman, Democratic Policy Analyst; and Karen Lightfoot, Democratic Communications Director and Senior Policy Advisor. 

Mr. SHIMKUS. I would like to call the hearing to order. And I will 

start by recognizing myself for 5 minutes. 

OPENING STATEMENT OF HON. JOHN SHIMKUS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS 

Today we will hold our first legislative hearing on H.R. 908, a 

bill that will give regulatory certainty, while providing the necessary security to keep chemical facilities, the employees who work 

there, and the American public safe. 

Under the leadership of Chairman Emeritus Barton, language 

authorizing the creation of the Chemicals Facility Anti-Terrorism 

Standards Act, which we know as CFATS, became law during the 

109th Congress. CFATS takes a common-sense approach to chemical facility security by allowing the Department of Homeland Security to register facilities and determine where the biggest security 

threats exist. This is done through the development of risk-based 

standards that greatly reduce or eliminate vulnerabilities. To date, 

this framework has been used successfully, with thousands of faVerDate Nov 24 2008 15:37 Oct 28, 2011 Jkt 037690 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 F:\112-028 HR 908 CHEMICAL FACILITY-PDF MADE\112-28 HR 908 CHEMICAL FACILITY-
2 

cilities around the country identified, and industry working collaboratively with DHS to comply with regulations. It is important that 

these efforts move forward because the continuation of the CFATS 

program remains critical to our national security. 

Introduced by Vice-Chairman Tim Murphy and Ranking Member 

Gene Green, H.R. 908 will allow our antiterrorism security efforts 

at chemical facilities across the country to remain strong and the 

law underpinning them to remain in effect. At the same time it 

gives DHS time to fully implement this law, but most importantly, 

it provides a signal of clarity to business that they will not face uncertainty, fostering job creation and getting our economy back on 

track. I am encouraged by the bipartisan effort with introduction 

of this bill. It has played no small part in us holding this legislative 

hearing today and I look forward to continuing these efforts together. 

I appreciate Under Secretary Beers for working with us on his 

schedule to make sure he could testify today and that is why we 

are starting a little bit earlier than we normally do. I look forward 

to an update on the Department’s progress as well as its thoughts 

on CFATS moving forward. 

Regarding our second panel, CFATS is a law that affects facilities with chemicals, not just chemical facilities. I believe it is important for this committee to hear from some of those interests. 

DHS’s own information shows that some universities, hospitals, 

warehouses, distributors, and paint manufacturers are considered 

high-risk sites under CFATS. I welcome these interests and all our 

members on the second panel. I am equally interested in hearing 

how their sectors have managed implementation, whether they 

think major new additions to the law are warranted, and what type 

of affects an extension of CFATS could have moving forward. 

Finally, I want to raise one more matter in case there have been 

many questions. As everyone knows, our committee has sole jurisdiction over the Safe Drinking Water Act and existing drinking 

water security program at EPA. While I am not opposed to looking 

at this issue separately and at a later date, the fact of the matter 

is CFATS is set to expire very shortly and the drinking water provisions aren’t. In a true risk-based spirit, we are going to attack 

the problem that is the most pressing first and then later look into 

seeing whether something more needs to be done in the other area. 

My time has expired. I will look for any one of my colleagues who 

may want a minute and 30, and if not, I will yield back my time 

and yield to the ranking member, Mr. Green from Texas, for 5 minutes. 

[The prepared statement of Mr. Shimkus follows:] 

PREPARED STATEMENT OF HON. JOHN SHIMKUS

The Subcommittee will now come to order. Today we will hold our first legislative 

hearing on H.R. 908, a bill that will give regulatory certainty while providing the 

necessary security to keep chemical facilities, the employees who work there, and 

the American public safe. 

Under the leadership of Chairman Emeritus Barton, language authorizing the 

creation of the Chemical Facilities Anti-terrorism Standards Act (CFATS) became 

law during the 109th Congress. CFATS takes a common sense approach to chemical 

facility security by allowing the Department of Homeland Security (DHS) to register 

facilities and determine where the biggest security threats exist. This is done 

3 

through the development of risk-based standards that greatly reduce or eliminate 

vulnerabilities. To date this framework has been used successfully, with thousands 

of facilities around the country identified, and industry working collaboratively with 

DHS to comply with regulations. It is important that these efforts move forward because the continuation of the CFATS program remains critical to our national security. 

Introduced by Vice-Chair Tim Murphy and Ranking Member Gene Green, H.R. 

908 will allow our anti-terrorism security efforts at chemical facilities across the 

country to remain strong and the law underpinning them to remain in effect. At the 

same time it gives DHS time to fully implement this law, but most importantly, it 

provides a signal of clarity to businesses that they will not face uncertainty; fostering job creation and getting our economy back on track. I’m encouraged by the 

bi-partisan effort with introduction of this bill. It has played no small part in us 

holding this legislative hearing today and I look forward to continuing these efforts 

together. 

I appreciate Under Secretary Beers for working with us on his schedule to make 

sure he could testify today. I look forward to an update on the Department’s 

progress as well as its thoughts on CFATS moving forward. 

Regarding our second panel, CFATS is a law that affects facilities with chemicals, 

not just chemical facilities. I believe it is important for this committee to hear from 

some of those other interests. DHS’s own information shows that some universities, 

hospitals, warehouses, distributors, and paint manufacturers are considered high 

risk sites under CFATS. I welcome these interests and all our members on the second panel. I am equally interested in hearing how their sectors have managed implementation, whether they think major new additions to the law are warranted, 

and what type of affects an extension of CFATS could have moving forward. 

Finally, I want to raise one more matter in case there may be questions. As everyone knows, our committee has sole jurisdiction over the Safe Drinking Water Act 

and the existing drinking water security program at EPA. While I am not opposed 

to looking at that issue separately and at a later date, the fact of the matter is 

CFATS is set to expire very shortly and the drinking water provision aren’t. In a 

true risk-based spirit, we are going to attack the problem that is the most pressing 

first and then later look into seeing whether something more needs to be done in 

that area. 

My time has expired, and I yield 5 minutes to the ranking member of the subcommittee, the gentleman from Texas and cosponsor of H.R. 908, Ranking Member 

Green. 

[H.R. 908 follows:] 

4 

5 

6 

OPENING STATEMENT OF HON. GENE GREEN, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS 

Mr. GREEN. Thank you, Mr. Chairman, for holding the legislative 

hearing today on H.R. 908, the full implementation of the Chemical 

Facility Anti-Terrorism Standards Act introduced by Representative Tim Murphy and myself. 

Chemical facility security is extremely important in the protection of public health and safety and particularly in our congressional district in Houston. The Houston Ship Channels are the 

heart of the petrochemical complex that stretches along the Texas 

Gulf Coast producing many products essential to modern life. It is 

also the largest petrochemical complex in the country. These chemical facilities contribute much in our economy and way of life in 

employing thousands of workers in high-paying quality jobs. These 

dedicated employees, as well as the communities that surround 

these facilities deserve the best security standards possible to prevent an act of terrorism on U.S. soil. 

Section 550 of the Department of Homeland Security Appropriations Act of 2007, Congress authorized the Department to regulate 

security at high-risk chemical facilities. Under Section 550, covered 

facilities must perform security vulnerability assessments and implement Site Security Plans containing security. According to DHS, 

since CFATS became effective in June of 2008, they have analyzed 

nearly 40,000 facilities across the United States. Initially, DHS 

identified more than 7,000 facilities as potential high-risk. Then 

over 2,000 facilities have been downgraded or are no longer regulated. Currently, CFATS covers 4,744 high-risk facilities nationwide across all 50 States, of which 4,126 facilities have received 

high-risk determinations. 

The program is funded through appropriation rider due to expire 

on March 18 with the CR. It is very important for the security of 

this country to revisit this statute to determine what is working in 

this program and what can be improved upon. 

Additionally, it is important we provide industry with some assurance that the program will continue to be funded. Since 2001, 

chemical facilities have already invested billions in security improvements or fully complying with current regulations. Last year, 

H.R. 2868, the Chemical Facility Antiterrorism Act introduced by 

Representatives Thompson, Waxman, and Markey passed out of 

this committee and the full House. But unfortunately, like many 

good pieces of legislation, the House passes H.R. 2868 was never 

taken up by the Senate, and we are here today to begin discussions 

on how to proceed with chemical security. 

I worked hard with Ranking Member Waxman and Markey to 

improve H.R. 2868. One of these provisions was to avoid unnecessary duplication between CFATS and exempted MTSA facilities. I 

continue to support provisions to avoid overlap with existing security programs and I intend to ask our witnesses today about this 

issue as well. 

And again, I want to thank our witnesses for appearing and welcome Under Secretary Beers. And with that, thank you for taking 

the time to discuss this important program. And Mr. Chairman, if 

I have any time left, I would like to yield to our ranking member 

of the full committee. 

7 

Mr. SHIMKUS. Do you want your full time? 

Mr. GREEN. You want your full time? OK. I will yield back. 

Mr. SHIMKUS. The gentleman yields back. The chair now recognizes the subcommittee vice-chairman, Mr. Murphy, for 5 minutes. 

OPENING STATEMENT OF HON. TIM MURPHY, A REPRESENTATIVE IN CONGRESS FROM THE COMMONWEALTH OF PENNSYLVANIA 

Mr. MURPHY. Thank you, Mr. Chairman. I want to thank you 

and also my colleague, Gene Green of Texas, for working with me 

on this bill. 

The chemical industry, we know, touches every segment of our 

economy from agriculture to energy production to paint and plastics. Certainly, there is nothing we can go through for an hour in 

our lives without touching several layers of it, and its safety and 

security is of high importance to all of us and essential to our Nation’s economic recovery in maintaining a strong domestic chemical 

industry. So any federal policy on plant security has to be mindful 

of that public health and safety but also has to make sure we have 

a regulatory certainty climate and stability so the chemical employers can continue to safely grow jobs and create a better economy. 

Under the Chemical Facility Anti-Terrorism Standards, our 

chemical plant and refineries have made significant improvements 

towards keeping our communities safe. In fact, since September of 

2001, the domestic chemical industry has spent an estimated $8 

billion on plant security and under the existing framework will 

spend another $8 billion. The law, we know, identifies four highrisk categories that require vulnerability assessments and Site Security Plans, but more importantly, the oversight and enforcement 

of the Department of Homeland Security. 

By the way, I am pleased that we will be hearing today from a 

Marine to talk about that because if anybody can tell us about security, call in the Marines, right? Important that we also have here 

today information on how this is working and present to us any information with regard to its effectiveness and implementation. Certainly, it does not deal with all aspects of chemical safety. That is 

for other issues on other legislation. This is specifically as it relates 

to some of these antiterrorism security measures. And we will look 

forward to hearing about this. 

So given that we have a successful program here, instead of 

changing it, the issue is let us provide domestic employers certainty on the regulatory front so they can continue to work towards 

the issue of security. Otherwise, we would be creating, I think, 

more barriers, more confusion with regard to security and jobs. 

So I look forward to working with Chairman Shimkus and Upton 

of the Energy and Commerce Committee, and of course with Ranking Member Gene Green to pass this bipartisan legislation and ensure that a key part of our Homeland Security policy is maintained. And with that, Mr. Chairman, I yield back. 

Mr. SHIMKUS. The gentleman yields back his time. The chair recognizes the ranking member of the full committee, Mr. Waxman, 

for 5 minutes. 

8 

OPENING STATEMENT OF HON. HENRY A. WAXMAN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA 

Mr. WAXMAN. Thank you very much, Mr. Chairman. 

After the terrorist attack of 9/11/2001, federal officials and outside experts warned that the Nation’s drinking water, utilities, and 

chemical facilities were vulnerable to terrorist attack. The risk that 

common, useful chemicals could be wielded as weapons by those 

who would seek to harm us became an alarming possibility and 

concern. 

In 2006 the Appropriations Committee established a program to 

protect the Nation’s chemical facilities from terrorist attack and 

other intentional acts. The Chemical Facility Anti-Terrorism Standards Act was established by a provision tacked onto an appropriations bill. Today’s hearing examines H.R. 908, legislation to extend 

the authorization for this 2006 program for another 7 years. 

The Department of Homeland Security has made tremendous 

progress in developing its chemical security program. They have 

done so without a great deal of congressional guidance. Although 

the provision establishing the program was within the jurisdiction 

of this committee, the committee didn’t mark up a report the provision. The members of this committee didn’t consider and revise it. 

Unfortunately, it was enacted without our input. 

The rationale was that this program was an emergency measure. 

It would be established quickly but would also end quickly, giving 

our committee the opportunity to develop a comprehensive policy. 

The Department of Homeland Security was directed to issue regulations in just 6 months and the program was slated to expire in 

2009. But now we have seen that deadline extended with each appropriations bill. 

The Department has done well in getting the program off the 

ground, but it is unable to correct shortcomings in the underlying 

law authorizing its program. That task falls to us as the committee 

of jurisdiction. 

And there are serious shortcomings with the law that create dangerous security gaps. For instance, drinking water facilities are not 

covered at all. Unfortunately, H.R. 908 simply extends the authorization of the existing program and would not address significant 

security gaps that put Americans at risk. It doesn’t have to be this 

way. In the last Congress, Democratic and Republican staff spent 

hundreds of hours methodically working through the issues surrounding the CFATS program. We worked with the Majority and 

Minority of the Committee on Homeland Security. Industry, labor, 

and affected stakeholders were consulted throughout the process. 

The result was H.R. 2868, the Chemical and Water Security Act 

of 2009, which this committee reported and passed the House on 

a vote of 230 to 193. That legislation would have closed significant 

security gaps by establishing a security program for drinking water 

facilities and wastewater treatment works. The legislation would 

have harmonized the Chemical Facility Anti-Terrorism Standards 

Act with the Maritime Transportation Security Act. It also would 

have removed exemptions from Federal facilities. 

H.R. 2868 would have strengthened security at covered facilities 

by requiring assessment and in some cases adoption of safer chemiVerDate Nov 24 2008 15:37 Oct 28, 2011 Jkt 037690 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 F:\112-028 HR 908 CHEMICAL FACILITY-PDF MADE\112-28 HR 908 CHEMICAL FACILITY-
9 

cals, processes, or technologies to reduce the consequences of a terrorist attack. That common-sense policy would help facilities reduce 

the likelihood that they will become attractive terrorist targets. 

H.R. 2868 would also have strengthened security nationwide by 

creating an important mechanism for citizen enforcement. Companies, state attorneys general, and ordinary citizens could have used 

this provision to hold the Department to deadlines and ensure that 

the program was implemented. 

Unfortunately, in its current state, H.R. 908 would make none of 

these changes and would do nothing to close the significant security gaps we face as a Nation. I hope that we can have a robust 

committee process, find common ground to close those security gaps 

once and for all, and to make our country safer. 

Finally, I would like to note a number of issues with this legislation relating to the legislative protocols announced by the majority 

leader. For instance, legislation authorizing discretionary appropriations is required to specify the actual amount of funds being 

authorized. H.R. 908 does not do this. The Republican leadership 

has also said that they require a new or increased authorization to 

be offset by the termination of an existing authorization of equal 

or greater size. H.R. 908 does not terminate any existing authorization. As we move forward in the legislative process, it is important 

that we understand how H.R. 908 comports with these protocols. 

Mr. Chairman, thank you for holding today’s hearing. This is an 

important issue and one that I hope we can work on together. I 

yield back my time. 

Mr. SHIMKUS. Thank you, Mr. Waxman. Now, I would like to recognize the Honorable Rand Beers. I will just say before—we are 

honored to have you. I have gone through your bio and career: public servant, Marine rifle company commander in Vietnam and then 

all over the place working in service to this country. So we do appreciate you coming and thank you for your service. And you are 

recognized for 5 minutes for your opening statement. 

STATEMENT OF RAND BEERS, UNDER SECRETARY, NATIONAL 

PROTECTION AND PROGRAMS DIRECTORATE, U.S. DEPARTMENT OF HOMELAND SECURITY 

Mr. BEERS. Thank you, Mr. Chairman, Ranking Member Green, 

distinguished—— 

Mr. SHIMKUS. Sir, there is probably a button on the front there. 

Mr. BEERS. Oh, there is. There we go. Thank you, sir. Thank you, 

Mr. Chairman, Ranking Member Green, and distinguished members of the committee. It is a pleasure to be here today and thank 

you for working to accommodate our schedules jointly. 

As you all are aware, Section 550 of the fiscal year 2007 Department of Homeland Security Act, as amended, set up the expiration 

of this program in October of 2010, and it has been extended 

through the legislative process, including to this committee and is 

set to expire. So we are very eager to work with the committee and 

all levels of government and the private sector to achieve passage 

of the legislation and permanently authorize the Chemical Facilities Anti-Terrorism Standards program. 

While the inspection process is still ongoing, our analysis indicates that this program is delivering tangible results that make our 

10 

Nation more secure. For example, since our inception, there have 

been 1,246 committees having completely removed their chemicals 

of interest and an additional 584 facilities that no longer possess 

the quantity of chemicals of interest that meet the threshold to be 

considered as high-risk facilities. 

Currently, as has been indicated, there are 4,744 high-risk facilities nationwide in all 50 States, of which 4,126 facilities have received a final high-risk determination and due dates for the submission of their Site Security or Alternate Security Plans. This is 

a reflection of the significant work that has been done to date, beginning with the review, as indicated, of more than 39,000 facilities 

that submitted initial consequence screenings. 

More than 4,100 facilities have submitted their Site Security 

Plans, and in February of 2010, the Department began conducting 

inspections of the final-tiered facilities, starting with the highest 

risk, or Tier 1, facilities. The Department has completed approximately 175 preauthorization inspections to date. 

An important point that I hope does not get lost in these statistics is the open dialogue that DHS has established with industry 

through this program and the successful security gains that have 

already been implemented as a result. 

We enjoy a constructive dialogue with Congress, including members of this committee, as it contemplates new authorizing legislation for the CFATS program. The Department supports permanent 

authorization for the program, is committed to working with the 

Congress and other security partners to pass stand-alone chemical 

security legislation that includes the permanent authority beginning in fiscal year 2011. 

As you know, the administration believes that such an authorization should close security gaps in the current structure, such as 

eliminating the exemption for water and wastewater facilities and 

prudently approaching mandatory consideration of inherently safer 

technology. 

Again, thank you very much for holding this important hearing, 

and I would be happy to respond to any questions that you might 

have, Mr. Chairman, and other members of this distinguished committee. 

[The prepared statement of Mr. Beers follows:] 

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Mr. SHIMKUS. Thank you, sir. I will recognize myself for the first 

5 minutes of questioning. 

The last time you were before our committee, you testified that 

6,156 facilities fell into one of the top four high-risk tiers. Today, 

on your testimony you are suggesting that there are 4,744 facilities 

or around 1,400 less than before now fall into one of the top four 

high-risk tiers. I think you mentioned some of that in your opening 

statement as far as the amount of chemicals being removed so they 

fell out of the criteria. The decline, is some of it due to plant closings themselves? Do you know? 

Mr. BEERS. Sir, I can’t give you an exact figure on plant closings, 

but almost all of them are a result of the movement of the chemicals of interest offsite or the reduction in the amount onsite that 

resulted in the removal of them from the list of the high-risk tier. 

Mr. SHIMKUS. Your staff could probably check these numbers and 

get us that information? 

Mr. BEERS. We will, sir. 

Mr. SHIMKUS. And thank you. Also, Ranking Member Waxman 

talked about the budgetary aspects, but based upon the present 

submission of a budget, there is probably a line item for this program in that budget, is that not correct? 

Mr. BEERS. That is correct, sir. It is approximately 100 million 

a year. It was 105 in FY ’10, it was 203 in the FY ’11 request, and 

it is 99 million in the FY ’12 request, so roughly 100 million, sir. 

Mr. SHIMKUS. Great, thank you. Great. That is helpful. Thank 

you. Also the last time you testified you stated that you did not 

have any idea of how much industry was spending to comply with 

CFATS, but you did note that based on the number of top-screened 

DHS was receiving that many material modifications were being 

made by covered facilities. You didn’t have last time—do you know 

of how much industry has had to spend to upgrade to meet CFATS 

compliance? 

Mr. BEERS. Sir, I don’t have that number at the tip of my fingertips. Let me have staff—— 

Mr. SHIMKUS. Is that something that in your negotiations they 

talk to you about at all or—— 

Mr. BEERS. One of the considerations that we bring to bear is we 

develop Site Security Plans is yes, sir, the cost of those security 

plans. Security is not a free good, as you well know, and we are 

very mindful of that. That doesn’t mean that—everyone has to recognize that some costs may be required to implement a good security plan. But a good security plan is good neighborliness on the 

part of the chemical industries in the areas that their facilities 

exist. 

Mr. SHIMKUS. Are there still implementation issues that need 

clarifying, such as personnel surety or agricultural chemical issues? 

Mr. BEERS. Yes, sir. Both of those are still works in progress. 

The personnel surety plan has been a subject of discussion between 

ourselves and the chemical industry. We are close to being in a position to come forward with that proposal. The indefinite extension 

of this regulation applying to some agricultural production facilities 

remains in effect. We have done several studies, but I can’t give 

you an indication of when we are going to get to the end of that 

indefinite extension, sir. 

32 

Mr. SHIMKUS. And in my opening statement I mentioned numerous programs from hospitals. This is a wide range, a portfolio, and 

I just wanted to put that out just for the public to understand that 

this does more than just chemical plants. It is a pretty wide range. 

And of course, from universities to hospitals are some that we 

would not normally think would be involved in this program. And 

in testimony in the last Congress sometimes that got confused. So 

I am just reiterating. You would agree with that, that there are 

hospitals and universities and it is a wide range of areas that are 

involved with the CFATS program? 

Mr. BEERS. Yes, sir. I mean just beyond the chemical manufacturers themselves, this affects warehousing distributors, oil and 

gas operations, hospitals, semiconductor manufacturers, paint manufacturers, colleges and universities, some pharmaceuticals, and 

some parts of the agricultural industry. And I have not finished the 

list there but that is certainly enough for giving people an indication of how broadly this particular law affects companies and facilities around the country. 

Mr. SHIMKUS. Great, sir. Thank you very much. Now, I yield 

back my time and recognize Mr. Green for 5 minutes. 

Mr. GREEN. Thank you, Mr. Chairman. I have some questions on 

coordination, but let me follow up with that. 

In your testimony you talk about the exemption, for example, of 

water and wastewater facilities. Are there any other facilities that 

are not part of the law now that you think should be included in 

it other than wastewater and water facilities? 

Mr. BEERS. Sir, we have talked before and you mentioned in your 

opening statement the MTSA exemption, which takes marine facilities or facilities that are located in areas defined as marine areas, 

which do in fact have chemical facilities that would fall under this 

regulation if they were not exempted from it. I can report to you 

that the Secretary has made it very clear both to me and the Commandant of the Coast Guard that she wants that harmonized with 

or without a law. We have engaged, over the course of the last 

year, in a working group study. There are 18 recommendations 

that are now moving up the chain as a result of that committee’s 

study, and I am hopeful that we will have that to the Secretary for 

final approval in the not-too-distant future. 

Mr. GREEN. I appreciate that and that is one of my concerns is 

that MTSA, you know, is part of the Transport Worker Identification Card, and my concern was that we would have a separate card 

for employees who actually go between these facilities and is it 

hope that Homeland Security under current authority could require 

or give credit to the TWIC card for someone at a chemical security 

facility or vice versa? 

Mr. BEERS. Yes, sir. That is exactly the point that the chairman 

was making when he asked about the Personnel Surety Program, 

and that is an effort that we are trying to merge between the two 

programs. It certainly defies logic, may I say, if we have one card 

for one kind of facility and one card for another. Having said that, 

and having spent some time around a table with a number of members of my staff and other staff, it is not a simple process, but it 

is a process which we are committed to and engaged in and I hope 

to have, as I said, an answer in the very near future. 

33 

Mr. GREEN. OK. I have 260,000 TWIC cards issued in our district 

and so I would hope that we would have some coordination because 

we have plants that are not on the water side but they are owned 

by the same company and yet, you know, they would have the flexibility to transfer those staff between the two. 

I am glad in your testimony you also talked about prudent IST. 

Under current authorization, does the Department have the authority to look at inherently safer technology? 

Mr. BEERS. It is not so much an authority question as it is that 

we have asked our Science and Technology Directorate within the 

Department to do a study of this issue. I don’t want to indicate 

that it is exhaustive but we in the CFATS area have not at this 

point in time as part of the CFATS program made any investigatory effort. Should such a requirement be enacted, we are poised 

to begin that process but no, sir, we haven’t actually begun it. 

Mr. GREEN. So is your testimony you don’t think you have the 

authority right now or you just haven’t begun to explore that? 

Mr. BEERS. We just haven’t begun to explore it. That is why I 

said we did have the Science and Technology Directorate explore 

information on that and that is available to us. At this particular 

point in time we didn’t feel it was appropriate to move any further 

than that initial exploratory effort on their part. 

Mr. GREEN. OK. Well, it would seem that if there is an issue, 

hopefully the Department would come to Congress and say this is 

something we need and that way we could respond. 

The exemption of water and wastewater facilities, last Congress 

we had legislation that included that, included lots of, you know, 

multiple utility districts that were very small, of course, some of 

the largest cities in the country. Is there anything under current 

law in CFATS that would allow for Homeland Security to also coordinate with our local communities, again, from the smallest to 

the largest to deal with some of the chemicals that are stored that 

makes our drinking water safe. 

Mr. BEERS. Sir, as part of our general outreach voluntary program under the National Infrastructure Protection Plan, we certainly can talk to those facilities in a best-practices sense. But in 

terms of any formal regulatory authority, obviously we have that 

exemption and no, we have not had that kind of a discussion in 

that sense. We have certainly worked with EPA to come to an understanding of the size of the population that we might be talking 

about. We have coordinated with them about the general notions 

that would come under a cooperative regime, which we have agreed 

to should that be enacted. But the actual communications of what 

a regulatory regime might look like, no, sir, it is a voluntary outreach program at this particular point. 

Mr. GREEN. Thank you. 

Mr. SHIMKUS. Thank you. And chair now recognizes Mr. Murphy 

for 5 minutes. 

Mr. MURPHY. Thank you. And again, welcome here, Mr. Beers. 

For all practical purpose, CFATS, which took effect in June of 

2007, and it has taken DHS 3 years and 10 months to work out 

the Tier 1 facilities and I think about 175 preliminary authorization inspections and four formal authorization inspections. How 

much longer do you think it will take to conclude the preliminary 

34 

authorization inspections on the other 41 Tier 1 facilities? Do you 

have any idea? 

Mr. BEERS. Sir, I have told my staff that I expect those to be 

completed by the end of this calendar year. We have obviously 

taken more time than you or we would have liked in terms of moving this program forward, but part of the reason that that time has 

been taken is that one, we are absolutely committed to a dialogue 

with industry on this issue, and we are trying to and continuing 

to try to set up a program that is a cooperative program. I think 

that by and large if you talk to industry, they will give you a response not dissimilar to what I am telling you right now. That dialogue has taken time. We have learned a lot on the path from the 

law’s enactment to today and I have no doubt that we will continue 

to learn that. But we are definitely committed to getting the Tier 

1 facilities done by the end of this year. And as you know, at the 

beginning of this calendar year, we began a major effort to move 

this forward. 

Mr. MURPHY. Thank you. What about the other authorization inspections? Same thing? You feel that—— 

Mr. BEERS. The other categories? 

Mr. MURPHY. Yes. 

Mr. BEERS. We will move onto them as soon as we get through 

the preauthorization inspections of the Tier 1 facility. So as you 

note, we have done 175. There are 216 facilities that are in Tier 

1 and 3 that are pending final tiering. So we should be able to 

move through those on the pre-inspection relatively quickly. It is 

getting the final version of the Site Security Plan and reviewing it 

and issuing letters that they should begin implementation that has 

taken up the time. They and we discovered that the original submissions didn’t always have a sufficient amount of detail and that 

has required a dialogue. We have learned a lot from that dialogue 

and I think we can move this program more quickly now based on 

that information. 

Mr. MURPHY. Thank you. And you feel industry has been cooperative with you in trying to implement these? 

Mr. BEERS. Absolutely been cooperative, sir. 

Mr. MURPHY. Thank you. When you testified for this committee 

before, DHS stated that it has not studied the inherently safer 

technologies’ potential effects on employment. Has that taken place 

since this hearing? 

Mr. BEERS. No, sir, not to my knowledge. 

Mr. MURPHY. OK. All right. How about can you explain to me 

how inherently safer technology works to prevent theft and diversion of chemicals in any way? Is that part of the things that you 

would have jurisdiction or would be looking at yourselves? 

Mr. BEERS. The simplest explanation of inherently safer technology actually deals with a water issue, as you are well aware. 

The use of chlorine in water creates a chemical that represents a 

risk depending upon the volume of the chemical stored at the particular site. There is an alternative which does not require a toxic 

chemical to be put there and use in that. And the question is 

whether or not we are going to have movement in that direction. 

But let me be clear. While there may be an estimated 6,000 

water and wastewater facilities that might fall under this were it 

35 

included. We don’t have enough firm data to tell you how those 

would stratify out and in fact whether they would all in fact be 

within the regime as you—— 

Mr. MURPHY. OK. Have you been communicating with EPA on 

these issues? Are you able to talk with them? 

Mr. BEERS. We have been talking with EPA since the last Congress and the bill that this committee—— 

Mr. MURPHY. Is that a cooperative relationship as well? 

Mr. BEERS. Yes, sir, I think it is. 

Mr. MURPHY. Do we need a federal law to tell you to do that? 

Or it sounds like you are already doing that, which I appreciate. 

Mr. BEERS. No, we don’t need a federal law to tell us to do that. 

Mr. MURPHY. Thank you. Because I know before we passed the 

Title IV, the Public Health Security and Bioterrorism Preparedness 

Response Act in 2002, which requires security for drinking water 

facilities and we are pleased that things are going over and that 

you are working cooperative on that. But I see I am out of time, 

so thank you so much, sir, and I yield back my time. 

Mr. BEERS. Thank you, sir. 

Mr. SHIMKUS. Gentleman yields back his time. Chair recognizes 

ranking member of the full committee, Mr. Waxman, for 5 minutes. 

Mr. WAXMAN. Thank you, Mr. Chairman. I am concerned that 

this legislation would leave unanswered many questions about our 

Nation’s vulnerability to attack on chemical facilities and I would 

like to explore some of these questions with you, Mr. Beers. 

Is it true that drinking water and wastewater facilities are statutorily exempt from the CFATS program? 

Mr. BEERS. Yes, sir. 

Mr. WAXMAN. Are they exempt because there is no risk of a terrorist attack? 

Mr. BEERS. Sir, I was not present when the law was originally 

put forward. I am not privy to the decision-making process that resulted in the exemption. 

Mr. WAXMAN. OK. Is it true that nuclear facilities are also statutorily exempt from the CFATS program? 

Mr. BEERS. Yes, it is, sir. 

Mr. WAXMAN. Should I rest assured that terrorists will not target 

these facilities? 

Mr. BEERS. No, sir, you should not rest assured that they will 

not, but we believe that the security regime that the regulatory 

agency has there is sufficient. Having said that, we have an outreach program between the Department of Homeland Security, the 

Nuclear Regulatory Commission, and the Department of Energy to 

talk in a voluntary mode about facilities that are also regulated by 

another department or agency. 

Mr. WAXMAN. What about the federal facilities that have large 

stores of chemicals that the Department is concerned about, the socalled Appendix A chemicals? Are they exempt? 

Mr. BEERS. Yes, sir. That is my understanding. 

Mr. WAXMAN. Is there any reason to think that chemicals pose 

less of a risk when they are at federal facilities than when they are 

at private facilities? 

36 

Mr. BEERS. No, sir. But we have a lot more control over the security at federal facilities than we do without the CFATS program 

over private-sector facilities. 

Mr. WAXMAN. Are you concerned about these gaps created by 

these exemptions? 

Mr. BEERS. Sir, the administration is taking the position, which 

I support, that water and wastewater ought to be included in this 

regime. We have also undertaken an effort within the Department 

of Homeland Security, as I indicated earlier, to ensure that there 

is a common regime between those facilities that are regulated 

under the MTSA and those facilities that are regulated under 

CFATS. That committee effort is completed. The recommendations 

are now moving up the chain to the Secretary to approve that, but 

she has made very clear to both me and the Commandant of the 

Coast Guard that she expects a harmonious regime across these 

two areas. 

Mr. WAXMAN. There are gaps and you expressed concern about 

them. You think they are otherwise being addressed but would 

H.R. 908 address those gaps? 

Mr. BEERS. H.R. 908 focuses on the permanent authorization. 

Sir, we also need the permanent authorization. The fact that we 

are living from year to year or CR to CR is not a particularly good 

way for us to run a program and work with our partners in the 

industry if we are uncertain about the future of it. You—— 

Mr. WAXMAN. Uncertain about the future of CR? 

Mr. BEERS. Excuse me? 

Mr. WAXMAN. Are you uncertain about the future of a CR? 

Mr. BEERS. Sir, a CR has an end date. If the next act with respect to this year’s appropriations doesn’t address this issue, yes, 

sir. I am. 

Mr. WAXMAN. I can understand that. I was being a little facetious in my question to you. 

We have only touched upon some of the significant security gaps. 

As you know, port facilities are not held to the same security 

standards as chemical facilities even though they may pose the 

same risk, and I hope that this subcommittee is able to work together to address those security deficiencies and craft legislation to 

secure our Nation. 

It has been almost 10 years since the attacks of 9/11 but the job 

of securing our country’s vulnerable assets is still unfinished, and 

I am concerned that DHS continues to miss milestones for implementation of this important program. 

Mr. Beers, how many facilities have completed the CFATS process? 

Mr. BEERS. Sir, in terms of the final approval of a plan, no facilities have. We have 175 that have received authorization letters and 

we have inspected—that means that they go forward implementing 

their Site Security Plan so that we can then go out and look at the 

implementation of the Site Security Plan. We have four of those 

175 who have had an inspection after they have begun to implement those plans and we expect that those four, which are currently under review, will be finally approved in the not-too-distant 

future. 

37 

Mr. WAXMAN. Um-hum. Well, let me just say—and I only have 

a few seconds left—it has been almost 4 years since the Department’s rules took effect and not one facility has completed the process. With that success rate I think we should all have concern 

about simply rubberstamping this program for another 7 years. 

And I just want to put that issue on the table. Thank you, Mr. 

Chairman. 

Mr. SHIMKUS. Thank you, sir. And before I recognize Mr. Latta, 

I want to recognize Mr. Murphy for unanimous consent request. 

Mr. MURPHY. Thank you, Mr. Chairman, a request for two letters, with unanimous consent, to submit. One is a letter from the 

CEO Randy Dearth of LANXESS and the other one is from the 

American Chemistry Council. 

Mr. SHIMKUS. Without objection, so ordered. 

[The information follows:] 

38 

39 

40 

41 

Mr. SHIMKUS. The chair now recognizes the gentleman from 

Ohio, Mr. Latta, for 5 minutes. 

Mr. LATTA. Well, thank you very much, Mr. Chairman, and Mr. 

Under Secretary, thanks very much for being with us today. 

If I can just go back, on page 3 of your testimony on the very 

bottom of the paragraph there, talking about what is listed about 

322 chemicals of interest. And I think that a question was asked 

mainly on agriculture, which I think the chairman had mentioned. 

The other thing you say there is an indefinite suspension on agriculture. What was that again, please? 

Mr. BEERS. Sir, because of the use of fertilizer in the agricultural 

industry, quantities of that fertilizer that are stored on farms, as 

well as at the wholesale distributor, that represented a large problem that we recognize but were not prepared in the initial effort 

to try to get at the heart of the problem, which are these larger 

facilities. So we gave them an extension, we have conducted some 

studies, but we are not to the point where we are prepared to talk 

about rule-making with respect to those facilities. 

Mr. LATTA. Thank you very much. Because the reason is I represent kind of an interesting district. I represent one of the largest 

manufacturing districts in Ohio and I represent the largest agricultural district because, of course, with anhydrous ammonia, that is 

one of the ones that our farmers are out there using all the time. 

And then another chemical listed is propane because in my area 

we have a lot of folks that live in the country that use propane for 

their main source of heat. Now, would propane be another one of 

those that down the road there might be something that—because, 

again, this is something that folks back home rely on all the time. 

Mr. BEERS. Sir, with respect to that yes, it is, but we are talking 

about levels of propane, not the fact of propane. And sir, I am not 

a farmer and I don’t know how much propane in a rural setting 

a farmer might have on his site, but I do have some rural property 

and I don’t have that many propane tanks. 

Mr. LATTA. You know, it is mainly for folks that live—and even 

in small villages. They don’t have natural gas. They use propane 

tanks that are there to heat their homes. I just wanted to doublecheck that with you. 

And I guess there is also the other question that I have is when 

you are looking at the release and the theft and the diversion, the 

sabotage and contamination, so down the road would you be looking at that, then, or because, again, on release, again, of course, the 

farmer is out there when you are spraying with anhydrous. I guess 

that is my question is that would somebody in agricultural production fall under these regulations? It would be kind of an undue 

hardship on them. 

Mr. BEERS. Sir, that is part of the issue that we are working our 

way through. I mean the point here is that those 4 issues that you 

just read out are all considerations, but we have the authority to 

make judgments on how to or what to interpret on that. There is 

a level of storage that we look at, but it is also a question of where 

it is and what kind of potential threat it is. 

Mr. LATTA. Thank you. 

Mr. BEERS. So we take all those issues into consideration. 

Mr. LATTA. Thank you very much. 

42 

Mr. BEERS. This is not a mechanistically implemented regulatory 

regime. 

Mr. LATTA. Mr. Chairman, I yield back. Thank you very much. 

Mr. SHIMKUS. If the gentleman would yield just your last 50 seconds for me. I represent parts of 30 counties in Southern Illinois 

so this propane debate is an interesting one. These residential 

tanks are about the size of a pickup truck, the bed of a pickup 

truck. If you were doing a development in a rural area where you 

had 10 or 15 homes with that, based upon the footprint of this development, could they fall into this process? 

Mr. BEERS. No, I don’t believe they could. I can give you—— 

Mr. SHIMKUS. I guess the issue is how much—— 

Mr. BEERS. But this is the issue of how much—— 

Mr. SHIMKUS. How much over—right. 

Mr. BEERS. And that particular—— 

Mr. SHIMKUS. That might be a good thing because, look, I mean 

we will have an agricultural perspective always through this process. 

Mr. BEERS. My staff is giving me a prompt. 

Mr. SHIMKUS. Good. 

Mr. BEERS. Sixty thousand pounds—— 

Mr. SHIMKUS. OK. 

Mr. BEERS. —is the threshold screening quantity. 

Mr. SHIMKUS. All right. I will have to find out how many pounds 

are in one of those big tanks. 

Mr. BEERS. So there is a propane tank out back of my rural property without a dolly of some sort. 

Mr. SHIMKUS. Right. 

Mr. BEERS. Even the larger tanks that you are talking about 

are—— 

Mr. SHIMKUS. And we will follow up. That is what we have hearings for. So thank you, sir. Now, the chair would like to recognize 

Mr. Barrow. No, he is not here. Ms. McMorris Rodgers for 5 minutes? No questions. Mr. Cassidy for 5 minutes. Would the gentleman yield for a second? And hit your button again and then pull 

the microphone up. 

Mr. CASSIDY. Now, Mr. Waxman’s question implied that the NRC 

is doing a poor job of regulating the security at nuclear power 

plants. When I visited the one in my district, oh, 6 or 8 months 

ago, I was impressed with the perimeter fences, the .50 caliber 

guns, the check-in process, et cetera. Have you had a chance to review the security requirements for such facilities and would you accept the implication of his questioning, that there is an inadequacy 

of those? 

Mr. BEERS. Sir, as I said in answer to his question, we believe 

that the regulatory regime that those plants are currently under is 

adequate to ensure their protection. 

Mr. CASSIDY. OK. I just wanted to make sure that was documented. 

Secondly, now, I don’t have your expertise—I am totally up front 

about that—but it seems like if we have incompletely implemented 

the rules—doing a great job working at it, but it just takes time— 

of something passed in 2007, it seems almost counterproductive to 

implement a whole other regulator regime when people have to adVerDate Nov 24 2008 15:37 Oct 28, 2011 Jkt 037690 PO 00000 Frm 00046 Fmt 6633 Sfmt 6633 F:\112-028 HR 908 CHEMICAL FACILITY-PDF MADE\112-28 HR 908 CHEMICAL FACILITY-
43 

just midstream. That is just intuitive to me. Would you accept that 

or would you dispute that? 

Mr. BEERS. Sir, you point out a challenge that would be true if 

that were the case, but the administration put forward its recommendation to add water and wastewater in the belief that we, 

in fact, have learned a great deal—— 

Mr. CASSIDY. Now, not to be rude but water and wastewater 

were not previously included, so that would not be a regulatory regime change if you will. That would be an addendum. 

Mr. BEERS. Yes, sir. 

Mr. CASSIDY. That is different from saying oh, listen, guys, you 

have been working on this, but by the way, we now have another 

set of rules before you completed the first set. 

Mr. BEERS. I am sorry. Are you specifically referring to the Inherently Safer Technology part? 

Mr. CASSIDY. Correct. 

Mr. BEERS. Sir, that is why in the administration’s presentation 

of this possible expansion that we want to be very clear that the 

deadlines, if any, take into account the need in moving in that direction that would be required by moving into an area that we 

would have to spend some time and effort. 

Mr. CASSIDY. But again, just to drill down on my question, it 

seems like if someone has not completely incorporated the recommendations of rules issued and regulations issued dating back 

to 2007, to come up with another regulatory regime before you 

have finished the first is almost like a whipsaw and, frankly, somewhat wasteful of resources if it turns out IST takes you in another 

direction. 

Mr. BEERS. Sir, we put forward the recommendation on this in 

the belief that we could, given sufficient time, be able to deal with 

an expansion of the regime. The challenge that you put forward is, 

I think, an accurately characterized challenge. 

Mr. CASSIDY. OK. 

Mr. BEERS. I am not disagreeing with you on that. And that is 

why we have been very clear that we would not want to be held 

to a heroic set of deadlines in that regard, because it will require 

an expanded effort; it will require some new information. 

Mr. CASSIDY. Now, again, you have so much more expertise in 

this area than I that with trepidation that I go forward. But still, 

when I think of IST, I think that that is a fairly static concept. 

Now, it has to be one vetted, you have to have public comments, 

you have got to look at it when frankly there may be some innovation out there which doesn’t have time to be processed. I think of 

the Maginot Line as being the IST of its day and yet clearly tank 

warfare, you know, ruined the concept. Now, do you accept that or 

is Maginot Line a poor example of where we are going with this? 

Mr. BEERS. Sir, I am a military historian. I love your example. 

But as the process that we have undertaken with respect to the facilities under the current regime has gone from a large number of 

firms that submitted top-screen down to a much smaller number, 

which is approximately 10 percent, and we have had 1,200 firms 

that have fallen off of this because they have changed the holdings 

and we had another several hundred that are in lower screening, 

we recognize that this is a dynamic process. And the point that you 

44 

make about changes in technology, we would of course incorporate 

changes in technology as they occurred. 

Mr. CASSIDY. But is it fair to say the bureaucracies have a difficult time—I am a physician. Whenever they come up with a practice guideline, I am always struck that the practice guideline has 

to ignore that which is on the cusp. Because in order to get the consensus for the practice guideline, the cusp almost has to be 

marginalized because 90 of the cusp is marginalized. But there is 

10 percent of that cusp that, wow, is the brave new future. Now, 

I have to think that in your area that that may also be true as kind 

of fertile as yours is for innovation. 

Mr. BEERS. Sir, that is an excellent example and I think you are 

correct in saying that sometimes bureaucracy appears to be slower 

than reality, but I would also say that one of the things about this 

program that we have absolutely learned is that we have to be 

flexible and adaptable in terms of looking at new situations and 

new pieces of information. 

Mr. CASSIDY. Thank you. 

Mr. BEERS. So that is what we would do. 

Mr. CASSIDY. He is gaveling us. I yield back. 

Mr. SHIMKUS. The gentleman’s time has expired. The chair would 

like, with unanimous consent, recognize the ranking member for a 

UC request and then follow up with a statement. 

Mr. GREEN. Mr. Chairman, I would like to ask unanimous consent to place into the record both a letter and testimony from the 

National Petroleum Refiners Association. 

Mr. SHIMKUS. Without objection, so ordered. 

[The information follows:] 

45 

46 

47 

48 

49 

50 

51 

52 

53 

Mr. GREEN. And also one last question. Part of the testimony 

that is going to be submitted by the Petroleum Refiners—and let 

me read a little bit of it—‘‘Under CFATS, it is required that personnel with access to sensitive information and relevant operations 

be vetted under the National Terrorism Screening Database, no 

matter if the person has been vetted by other government 

credentialing programs, such as the Transport Worker Identification Card or the Hazardous Materials Endorsement, or a host of 

other federal government credentialing programs. In the last 2 

years, DHS has twice proposed in the Federal Registry that employees at CFATS sites would have to obtain multiple government 

credentials.’’ 

Obviously, there is some confusion out there concerning what 

DHS is doing, and that is our concern about this legislation. One 

of the things, we would like to give you the authority to make sure 

you streamline it instead of people having—it is bad enough—I 

work at the Port of Miami, and I have to have a Miami Port card 

along with a DHS card or a TWIC card. We surely don’t need multiple federal cards. And so that is our concern. 

Mr. BEERS. And that is our concern as well, sir, and that is what 

we are trying to work to resolve. 

Mr. GREEN. OK. Thank you. 

Mr. SHIMKUS. I want to thank you for coming and appreciate 

your response to the questions. And if you have got information on 

Mr. Green’s issue and you want to be receptive to his concerns, so 

if there are ways in which you can provide us information as we 

move forward on this process, we would appreciate it. So sir, you 

are excused and we will sit the next panel. 

Mr. BEERS. Sir, thank you very much for the opportunity and I 

look forward to continuing to work with you and the committee. I 

appreciate it. 

Mr. SHIMKUS. Thank you. We will give everyone a chance to get 

seated and then I will do an introduction of the entire panel and 

then we will recognize each member on the second panel for 5 minutes, your full statements are submitted for the record, and then 

we will follow up with questions. 

So first of all, we would like to thank the second panel for joining 

us. On the second panel, we have Mr. Andrew Skipp, President and 

CEO of Hubbard-Hall, Incorporated, from Waterbury, Connecticut. 

Also Mr. David Tabar, CSP—what is CSP? 

Mr. TABAR. Certified safety professional. 

Mr. SHIMKUS. Oh, I should know that. Global Director of Safety, 

Sherwin-Williams—I do know that—from Cleveland; Mr. Bill 

Allmond, Vice President, Government Relations, Society of Chemical Manufacturers and Affiliates; and then Mr. James Frederick, 

Assistant Director of Health, Safety, and the Environment, and the 

United Steelworkers. 

And we want to welcome you all here and we will start. Mr. 

Skipp, you are recognized for 5 minutes. 

54 

STATEMENTS OF ANDREW K. SKIPP, PRESIDENT/CEO, HUBBARD–HALL, INC., ON BEHALF OF THE NATIONAL ASSOCIATION OF CHEMICAL DISTRIBUTORS; DAVID TABAR CSP, 

GLOBAL DIRECTOR OF SAFETY, SHERWIN–WILLIAMS, ON BEHALF OF THE AMERICAN COATINGS ASSOCIATION; WILLIAM 

E. ALLMOND IV, VICE PRESIDENT, GOVERNMENT RELATIONS, SOCIETY OF CHEMICAL MANUFACTURERS AND AFFILIATES; AND JAMES S. FREDERICK, ASSISTANT DIRECTOR, 

HEALTH, SAFETY, AND ENVIRONMENT, UNITED STEELWORKERS 

STATEMENT OF ANDREW K. SKIPP 

Mr. SKIPP. Thank you, and good morning, Chairman Shimkus, 

Ranking Member Green, and subcommittee members. My name is 

Andrew Skipp and I am president of Hubbard-Hall, a chemical distributor based in Waterbury, Connecticut. I am also chairman of 

the National Association of Chemical Distributors (NACD), and I 

am pleased to provide testimony today in support of H.R. 908 to 

extend DHS’s authority to continue the CFATS program. 

NACD is an association of over 250 chemical distributors who 

purchase and take title to products and market them to a customer 

base of more than 750,000. Most NACD members are small, privately-owned businesses. The typical member has 26 million in annual sales, three facilities, and 28 employees. We demonstrate our 

commitment to product stewardship through compliance with Responsible Distribution, our mandatory and third-party-verified environmental, health, safety, and security program. 

As owners and managers, our members have a personal stake in 

safety and security of our employees and companies. We demonstrate this through our commitment to Responsible Distribution, 

our relationships with our employees and our union members, and 

through our careful compliance with numerous environmental, 

transportation, safety, regulatory concerns, both on a federal, state, 

and local level. 

On behalf of Hubbard-Hall and NACD, I commend Representatives Murphy and Green for introducing the legislation to extend 

DHS’s authority to continue CFATS for 7 years. NACD was a 

strong supporter of the 2006 legislation that resulted in CFATS. 

H.R. 908 would allow time for the full implementation and evaluation of CFATS before changes to this important program are considered. 

Because CFATS is a major regulation based upon performance 

standards for each facility rather than on one-size-fits-all mandate, 

it is taking time for DHS to evaluate and inspect over 4,100 Site 

Security Plans. However, this approach has the advantages of designing plans to address each facility’s unique situation while 

avoiding the creation of a single road map for potential terrorists. 

The bottom line is the real security measures are being implemented at facilities around the Nation because of CFATS. For example, my company has three facilities that are covered by this 

program. We have worked hard and spent substantial resources to 

design our Site Security Plans and implement additional security 

measures. 

55 

CFATS is a major regulatory commitment for Hubbard-Hall. We 

are willing to invest the time and the resources to comply with this 

important regulation, and I know that our company and all NACD 

members would welcome the certainty of a clean, long-term extension. 

Prior CFATS proposals included measures that would have been 

counterproductive to the good progress that has been made. The 

most disruptive of these have required all CFATS-covered facilities, 

including chemical distributors to conduct inherently safer technology, IST assessments, and for those in the highest-risk tiers to 

implement these measures. Such a mandate would shift the focus 

away from the real security issues and force companies to consider 

full-scale engineering and product changes. 

I want to emphasize that NACD opposes mandatory IST consideration. The fact of conducting IST assessments would be extremely costly for NACD members and would not reduce risk. For 

most NACD members, IST assessments would have to be 

outsourced at significant cost and produce limited options. Chemical distributors maintain specific inventories in order to respond 

to customer needs. If distributors are required to reduce inventories of certain products that would prevent us from meeting these 

needs. Particularly in these tough economic times, in addition to 

the myriad of regulations that already affect us, this could be the 

final straw to put some companies out of business, which would result in further job loss. Required inventory reductions would also 

assign additional risk to transportation and increase the likelihood 

of product handling incidents. 

Finally, CFATS currently provides incentives to companies to use 

the safest possible methods so they can assign to a lower-risk tier. 

In fact, over 1,200 facilities have reduced their security risk so 

much that they have tiered-out of the program. Many more facilities have been assigned to lower tiers. 

In conclusion, I repeat that NACD strongly supports the legislation to extend the current chemical security program with no 

changes. A clean extension will both provide regulatory certainty 

and allow for continued progress in implementing real security 

measures at our facilities. 

On behalf of Hubbard-Hall and NACD, I appreciate this opportunity to present our views on this critical issue and I look forward 

to your questions. Thank you. 

[The prepared statement of Mr. Skipp follows:] 

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Mr. SHIMKUS. Thank you very much, sir. And I would like to recognize—and I guess I mispronounced it—Mr. Tabar from SherwinWilliams. You are recognized for 5 minutes. 

STATEMENT OF DAVID TABAR 

Mr. TABAR. Thank you. Good morning, Chairman Shimkus and 

members of the subcommittee. My name is David Tabar and I am 

the global director of safety for the Sherwin-Williams Company in 

Cleveland, Ohio. I am also here representing the American Coatings Association. My purpose here today is to support H.R. 908, 

and I thank you for this opportunity to present our views before 

the subcommittee today. 

The paint and coatings industry has been working to enhance 

the security of their manufacturing operations over the last decade. 

Specific steps the ACA has taken include the addition of a new security code to our Coatings Care Stewardship Program. ACA is a 

long-standing participant in the Chemicals Sector Coordinating 

Council and continues to work with the Department of Homeland 

Security on both voluntary and mandatory security measures 

under the Chemical Facility Anti-Terrorism Standards. 

Over the last several years, the coatings industry has worked 

hard to achieve CFATS compliance, including the submission and 

the conduct of Top-Screens, Security Vulnerability Assessments, 

and Site Security Plans, along with the development of proposed 

action plans requiring further review with the DHS. Facilities that 

were identified as ‘‘high-risk’’ were ultimately assigned one of four 

tiers by DHS. The process is ongoing, and while several coatings 

industry sites have completed this process, including related DHS 

inspections, other firms await DHS response to their Site Security 

Plans or Alternative Security Plans. 

ACA supported the original CFATS legislation and strongly supports the current program. This demanding program is now requiring thousands of chemical manufacturers and formulators nationwide to develop and deploy meaningful security enhancements. As 

a result, ACA supports permanent—or at least long-term—reauthorization of the existing CFATS statute in order to allow regulated facilities to continue their implementation of stringent DHS 

chemical facility security standards in an orderly manner. In our 

view, it is premature to seek to change the existing framework substantially until it has been fully implemented and we have gained 

a better understanding of what works and what does not. 

It is important that any uncertainty created by possible shortterm reauthorizations is eliminated, so as to provide regulatory 

clarity, thus allowing affected industries to make prudent business 

decisions about how best to implement the current regulations. 

ACA, along with other groups, has opposed previous efforts to mandate product and process substitutions with technology established 

by regulation. Any move away from the current risk-based standards would lead to confusion, loss of viable security products, systems methodologies, and would create prohibitive legal liability and 

possible business failures. A move away from risk-based standards 

would most certainly put U.S. manufacturers at a competitive disadvantage with foreign manufacturers not facing such requirements. By making the existing chemical security framework perVerDate Nov 24 2008 15:37 Oct 28, 2011 Jkt 037690 PO 00000 Frm 00069 Fmt 6633 Sfmt 6633 F:\112-028 HR 908 CHEMICAL FACILITY-PDF MADE\112-28 HR 908 CHEMICAL FACILITY-
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manent, a certainty will be provided that is necessary to enable 

companies to protect our citizens and to facilitate economic recovery. 

As a result, although ACA has consistently favored permanent 

CFATS reauthorization, we support the approach taken in H.R. 

908, the full implementation of the Chemical Facility Anti-Terrorism Standards Act. The extension to 2017 provides industry 

with sufficient breathing room to implement CFATS on a permanent basis prior to a required revisiting of the law 7 years from 

now. 

Many operations throughout the coatings industry are covered by 

CFATS, primary due to commercial grades of raw materials that 

are commonly used to formulate specialty roof, emissivity, infrastructure, or automotive coatings. As a responsible corporation, 

Sherwin-Williams has devoted considerable resources to CFATS 

compliance and works hard to meet our obligations to neighboring 

communities, customers, shareholders, and the public. 

Examples of CFATS-related actions include: new staff positions 

in chemical facility anti-terrorism; raw material elimination or substitution; control of purchasing, sales, inventories; development and 

enhancement of chemical tracking technologies; onsite and program-related consultative reviews; organization-wide safety and security support team development; Alternative Security Plans developed for small facilities; development of internal chemical security 

compliance standards; development of Facility Security Officer 

training; development of new risk- and regulatory-based management of change systems to improve risk identification, control, and 

action-closure; and the development of employee security awareness training programs. 

In light of our own experience, we agree with the position of ACA 

and our industry colleagues concerning a more permanent reauthorization of CFATS. Because of significant requirements placed 

on our company and other coatings manufacturers, we believe that 

Congress should continue to recognize this very stringent and wellconstructed industrial antiterrorism program. Thank you. 

[The prepared statement of Mr. Tabar follows:] 

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Mr. SHIMKUS. Thank you, sir. Now the chair recognizes Mr. 

Allmond for 5 minutes, sir. 

STATEMENT OF WILLIAM E. ALLMOND IV 

Mr. ALLMOND. Thank you. Good morning, Chairman Shimkus, 

Ranking Member Green, and Vice Chairman Murphy, and members of the subcommittee. 

My name is Bill Allmond and I am the vice president of government relations at the Society of Chemical Manufacturers and Affiliates. For 90 years, SOCMA has been and continues to be the leading trade association representing the batch, custom, and specialty 

chemical industry. SOCMA’s 250-member companies employ more 

than 100,000 workers across the country and produce some 50,000 

products—valued at $60 billion annually—that help make our 

standard of living possible. Over 80% of our members are small 

businesses. 

I am pleased to provide this testimony regarding H.R. 908, the 

full implementation of the Chemical Facility Anti-Terrorism Standards Act. SOCMA strongly supports DHS’s current Chemical Facility Anti-Terrorism Standards, or CFATS. This demanding regulation is now required in nearly 5,000 chemical facilities nationwide 

and facilities that use chemicals nationwide to develop and deploy 

meaningful security enhancements. This performance-based regulation protects facilities against attack without impairing the industry’s ability to remain innovative and maintain some of the Nation’s highest-paying manufacturing jobs. Furthermore, the standards have teeth. DHS has the authority to levy significant fines on 

a facility for noncompliance, can even shut a facility down. 

Congress can best assure CFATS’s continued success and forward momentum by passing H.R. 908. This bill would reauthorize 

CFATS through 2017, thus allowing DHS and facilities to concentrate on successfully implementing that regulation through completion. 

SOCMA regards this regulation thus far as a success. Due to the 

outstanding cooperation of the chemical sector, there has been 100 

percent compliance with the requirements to submit Top-Screens, 

Security Vulnerability Assessments, and Site Security Plans. DHS 

has not yet had to institute a single administrative penalty action 

to enforce compliance. 

Additionally, 2,000 facilities have changed processes or inventories in ways that have enabled them to screen out of the program. Thus, as predicted, CFATS is driving facilities to reduce inherent hazards, where in their expert judgment doing so is in fact 

safer, does not transfer risk to some other point in the supply 

chain, and makes economic sense. 

To fully gauge the effectiveness of the CFATS program, Congress 

should allow all tiered facilities to come into compliance. Completing the program’s implementation from start to finish would 

provide DHS and chemical companies the ability to assess the overall efficacy of CFATS, identify its areas of strengths and weaknesses, and subsequently make or recommend to Congress any necessary improvements. 

Conversely, the need for annual reauthorization of CFATS has 

created uncertainty for regulated facilities. Without the assurance 

74 

of a long-term authorization of these regulations, companies do run 

the risk of investing in costly activities today that might not satisfy 

regulatory standards tomorrow. 

Statutory authority for CFATS, which has been tied to a series 

of continuing resolutions passed by Congress since last year, is set 

to expire next week, as you know. Congress must act now to ensure 

continuation of the current standards and reauthorize the underlying statute for multiple years. 

As Congress considers chemical security legislation further, there 

is an issue of particular concern to us, which is interest among 

some to mandate Inherently Safer Technology within CFATS. One 

of our greatest concerns with mandatory IST is the real possibility 

that it will negatively restrict the production of active pharmaceutical ingredients, or APIs, many of the key raw materials of 

which are regulated under CFATS. 

APIs are used to fight many types of cancer, used in prescription 

and generic drugs and over-the-counter medicines. They are thoroughly regulated by the Food and Drug Administration and must 

meet demanding quality and purity requirements. Substituting 

chemicals or processes used for the production of APIs would create 

substantial unintended consequences. Substitution would likely violate the conditions of companies’ FDA approvals. Requiring IST 

could also delay clinical trials while new replacement chemicals are 

identified, and meanwhile, to meet continuing consumer demand, 

API production would likely shift to foreign countries where FDA 

is less able to monitor conformance to quality standards. 

There is a legitimate federal role in IST at the moment, however, 

and DHS is actually serving that role well. A few years ago, DHS 

initiated an increasing safety of hazardous chemicals process to develop a consensus definition of IST, and from that, to begin crafting 

metrics that would allow people to begin to compare inherent safety of different processes. The definition process was open and engaging and concluded last year with a document that has been universally praised. This program has now begun work on its metrics 

project, although SOCMA understands that there is no funding for 

that effort in the President’s fiscal year 2012 budget. That is unfortunate because this is an example of how the Federal Government 

can play a useful role in the field of inherent safety. Any attempt 

to mandate even consideration of IST is premature otherwise. 

We recommend the subcommittee move forward and place a 

higher priority on ensuring the current standards are extended. 

H.R. 908 does just that. I appreciate this opportunity to testify before you today and I look forward to your questions. 

[The prepared statement of Mr. Allmond follows:] 

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Mr. SHIMKUS. Thank you. And now I would like to turn to Mr. 

James Frederick, who is from the United Steelworkers. Before I 

give you your 5 minutes, during the district work period, I visited 

the U.S. steel plant in Granite City, Illinois. We still make steel 

in this country. It is difficult to do. It is the second time I have 

been there but it is phenomenal, a big operation, so thanks to you 

and the membership for the guide and the tour and I look forward 

to hearing your testimony. 

STATEMENT OF JAMES S. FREDERICK 

Mr. FREDERICK. Thank you, Mr. Chairman and members of the 

subcommittee. Thank you for the opportunity to appear before you 

this morning to discuss the United Steelworkers’ views on H.R. 

908. The USW appreciates the opportunity to share our views with 

the Subcommittee on the important aspects of this issue and how 

H.R. 908, if passed, will extend the Department of Homeland Security Chemical Facility Anti-Terrorism Standards, CFATS. 

My name is Jim Frederick. I am a member of the United Steelworkers and the assistant director of the union’s Health, Safety, 

and Environment Department in Pittsburgh, Pennsylvania. I have 

spent my 20-year career identifying and addressing workplace 

health and safety hazards; responding and investigating worker 

deaths, injuries, and illnesses; assisting local unions with health, 

safety, and environment improvements; and developing and delivering worker health, safety, and environment education and training programs. 

The full name of our union is the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied-Industrial, and Service Workers International Union. As the largest industrial union in 

North America, we represent a total of 1.2 million active and retired members in the United States, Canada, and the Caribbean. 

More than 125,000 of these work in 800-plus chemical industry 

workplaces. Many of these are small workplaces and some are 

small businesses. 

The USW involvement in chemical plant security started long before the original promulgation of CFATS or the September 11, 

2001, terrorist attacks on the United States. Our union has always 

been actively engaged and involved with our members, communities, regulators, and legislators to improve workplace safety for 

our members, as well as their families and the community. 

The importance of this issue and these rules were well laid out 

in the Senate Committee on Homeland Security and Governmental 

Affairs hearing yesterday, titled ‘‘10 Years After 9/11.’’ 

As part of a broad coalition of more than 100 organizations, the 

USW believes that legislation must be passed to improve chemical 

industry workplace safety and security, not just to extend the existing interim measures that generated CFATS rule. We believe that 

this is absolutely necessary to properly protect the communities 

that our members and their neighbors live and work. Recent examples from the Gulf oil spill to the earthquake and tsunami in Japan 

resonate of what can happen if catastrophic events take place in 

this country. 

And we believe the problems with CFATS include the following: 

(1), specific security measures. CFATS prohibits DHS from requirVerDate Nov 24 2008 15:37 Oct 28, 2011 Jkt 037690 PO 00000 Frm 00086 Fmt 6633 Sfmt 6633 F:\112-028 HR 908 CHEMICAL FACILITY-PDF MADE\112-28 HR 908 CHEMICAL FACILITY-
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ing any specific security measure. H.R. 908 would extend the prohibition from the DHS Secretary from denying approval for a Site Security Plan based on the presence or absence of a particular measure. The performance based standards will continue to allow employers to determine how they comply with the rules. Performance 

standards often result in cost and productivity taking precedence 

over safety. Performance standards also typically equate to less 

regulator oversight. 

An example of this is sometimes seen in chemical storage areas 

or tank farms at a chemical plant or oil refinery where retaining 

dikes are constructed to keep unexpected releases of chemicals 

from escaping to the environment beyond the tank farm. However, 

the retaining dikes are often in disrepair or are not engineered to 

retain the proper volume of chemicals in the tank farm. 

Next, smart security—CFATS fails to develop the use of smart 

security—safer and more secure chemical processes that can costeffectively prevent terrorists from triggering chemical disasters. 

When we train workers and others to correct health and safety 

hazards in our workplaces we turn and follow the hierarchy of controls. The hierarchy of controls instructs us that the most effective 

way to control a hazard from causing an injury is to eliminate it 

or substitute it with something less hazardous. Legislation and 

standards addressing chemical plant security should utilize the 

same hierarchy principles to recognize and encourage the elimination or reduction of hazardous materials when possible and use 

substitution with less hazardous components. 

Safer processes may not be feasible in some circumstances, but 

they should at least be considered in a security plan. Many safety 

measures may be possible without expensive redesign and newer 

equipment. Since 1999, more than 500 facilities have used smart 

security to eliminate risks and create communities that are less 

vulnerable to harm. 500 is an impressive number but many, many 

more need specific guidance from legislation and regulation to implement such changes. 

Exemptions of too many workplaces at risk, as I already discussed this morning, CFATS explicitly exempts thousands of chemical and port facilities, including water treatment facilities and including at least half of the oil refineries in this country. 

Worker involvement: CFATS fails to involve knowledgeable 

workers in the development of vulnerability assessments and Site 

Security Plans or protect employees from its excessive background 

checks. Lesson after lesson can be taken from the input from workers in various workplace health and safety exercises of how that 

input has helped the employer to integrate and put in place effective security and safety measures. 

And one last point on risk shifting, CFATS fails to address the 

current problem of risk shifting, such as when companies shift 

chemical hazards to unguarded locations such as rail sidings. Risk 

shifting takes place continually in many workplaces. There are several reasons that this practice occurs, but the results are always 

the same. The community is at increased risk of exposure to a release of hazardous materials or to a terrorist obtaining these materials. 

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In one recent example at a USW workplace, railcars of 

hydrofluoric acid are being stored off site property on rail sidings. 

The workplace stores approximately 2 million pounds of 

hydrofluoric acid, some offsite. The railcars are located near residential areas in the community. A release from 1 or more of these 

would be devastating to the residents close by and for a large area 

of the surrounding communities. Chemical plant security legislation can fully eliminate risk shifting by banning the practice legislatively and in subsequent regulation. 

The USW believes that legislation must be passed to improve 

chemical industry workplace safety and security that includes 

these items, not just to extend the existing interim measures that 

generated CFATS as a final rule. We believe that this is absolutely 

necessary to properly protect communities. However, if CFATS is 

going to be extended by this bill, please consider reduction of the 

time for the extension to 1 year and charge all stakeholders involved to convene as necessary to develop longer-term solutions to 

these problems. 

On behalf of the USW membership and their communities, thank 

you for the opportunity to testify this morning. 

[The prepared statement of Mr. Frederick follows:] 

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Mr. SHIMKUS. Thank you. Now, the chair recognizes himself for 

5 minutes for questions. 

We have used the word ‘‘permanent’’ and I guess in this system 

of authorization that 7 years would seem like permanent, but Mr. 

Allmond, you mentioned it is really a long-term authorization, 

which would then give us a time to look at the bill through the 

next process. Would you all agree with that, that this is really not 

a permanent authorization or reauthorization? This is a 7-year authorization. Mr. Skipp? 

Mr. SKIPP. Yes, I would say that that is true. I think that there 

is a very steep learning curve that is going on here. Certainly, the 

efforts of the Department of Homeland Security have been admirable about how they bring this thing up. And I think we are now 

finding that we are getting our hands around this thing but we 

need more time. And I think this does that. Recognize the fact that 

rules can change down the way, but this is a great first step. 

Mr. SHIMKUS. Mr. Taber? 

Mr. TABER. I would agree with that wholeheartedly. Seven years 

is going to go by rather quickly. We have got a lot that we have 

done in the last several years. We need the next few years to tighten that up, and we also need the direct involvement with DHS 

more specifically now that we have filed, all our plants are willing 

to move forward. 

Mr. SHIMKUS. Mr. Allmond? 

Mr. ALLMOND. Yes, sir, Mr. Chairman. Seven years would provide a lot more time. I mean, Congress, you know, has a very important oversight responsibility down the road, but it would give, 

certainly, industry a lot more certainty. 

Mr. SHIMKUS. Mr. Frederick, you said 1 year so I want you to 

weigh in also. 

Mr. FREDERICK. Certainly. I already stated that we would recommend a shorter extension. The program has been in place for 

several years already. Extension only adds to making essentially 

this into a permanent fix as what was started and agreed to at the 

time to be a temporary interim quick solution. 

Mr. SHIMKUS. But 7 years is not permanent. I mean 7 years will 

come and there will be another reauthorization period to look at. 

I guess because the next point following up on this is that the full 

implementation CFATS hasn’t occurred to date, is that correct? 

Mr. SKIPP. That is correct. 

Mr. SHIMKUS. And anyone disagree with that? So the point being 

I think we have to be very, very careful about changing the rules 

midstream before everyone has completed the process that was designed originally. And so that is part, you know, I like what Mr. 

Murphy has done with the 7 years. Maybe that will be discussed 

as we move the process through in the committee. Maybe that time 

frame may be adjusted. I am not sure how the committee would do 

in an open process that that may come up. But I think it is important that we give the existing authorization time to get through the 

whole process. We heard the deputy secretary talk about they are 

not even through the process of tiering folks out, moving people 

around, and so that is just kind of an editorial comment. 

Do you all believe that there are other existing requirements for 

health and safety such as OSHA’s Process Safety Management ProVerDate Nov 24 2008 15:37 Oct 28, 2011 Jkt 037690 PO 00000 Frm 00100 Fmt 6633 Sfmt 6633 F:\112-028 HR 908 CHEMICAL FACILITY-PDF MADE\112-28 HR 908 CHEMICAL FACILITY-
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gram, the Emergency Planning and Community Right-to-Know Act, 

the EPA’s Risk Management Program, and are these appropriate 

for safety protections? 

Mr. SKIPP. Well, they are part of that as far as I am concerned. 

And we implemented all of those things in our community. We are 

a company that goes back to 1849 in the city of Waterbury. I am 

the 6th generation to run the family business, and I can tell you 

that being thoughtful to our community and making sure we are 

communicating well with them is something that we do every day, 

and we integrate that with our police and fire as well. So this 

would just complement those efforts, I believe. 

Mr. TABAR. Now, I know both for the coatings industry and with 

Sherwin-Williams, global process safety is very critical to us. We 

have made efforts not only here in the U.S., but we are looking at 

exporting our programs internationally. We think that a lot is embodied in process safety that deals with IST already and it is very 

normal for us to deal with substitutions and changes, reformulations as part of our chemical process safety efforts. 

Mr. ALLMOND. Yes, that is correct, Mr. Chairman, and as the 

under secretary testified, DHS is nowhere near close to understanding how to regulate IST at the moment. 

Mr. SHIMKUS. Mr. Frederick? 

Mr. FREDERICK. And it is certainly correct that these are pieces 

of a very complex issue that do come into play of providing some 

semblance of safety in those workplaces. 

Mr. SHIMKUS. Great. Thank you. My time is about expired, so I 

will yield to the ranking member, Mr. Green, for 5 minutes. 

Mr. GREEN. Mr. Chairman, I am just glad to hear you say you 

all. I thought that was something that I said—— 

Mr. SHIMKUS. I am from Southern Illinois. 

Mr. GREEN. I know, Southern Illinois. Well, you all heard my 

questions earlier about coordination between because I have a lot 

of plants. In fact, along the Houston Ship Channel, all of my refineries—I have five refineries. Four of them are, by the way, organized by steelworkers and thank you. I used to have real steelworkers but now they are all refinery and chemical plant workers. 

The coordination of that to where we only have 1 federal identification card and that is our goal. And I know for your facilities it is 

the same thing. 

Mr. Frederick, you represent many of the workers at the chemical facilities. In fact, I was last year at a Conoco/Chevron facility. 

It actually has 500 steelworkers, and it was after the economy 

cratered and some of my chemical plants are closing, but since they 

make these plastic bottles we all drink out of, they were running 

3 shifts and 500 union members. Do you have concerns about the 

MTSA issues? Because I know that plant is on the channel, Ship 

Channel of Houston and Exxon/Mobil refinery and Shell, but they 

also have facilities that are not covered by MTSA. 

Mr. FREDERICK. Yes. And for a number of reasons bur a couple 

of very good examples. One is just inconsistencies from within employers from one facility that is covered by CFATS to a facility that 

is not and how they have addressed the facility safety and security 

as a result of that inconsistency. So certainly, yes, there is a numVerDate Nov 24 2008 15:37 Oct 28, 2011 Jkt 037690 PO 00000 Frm 00101 Fmt 6633 Sfmt 6633 F:\112-028 HR 908 CHEMICAL FACILITY-PDF MADE\112-28 HR 908 CHEMICAL FACILITY-
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ber of examples that we could go into of why we think those should 

be included in the same set of rules as those off the waterways. 

Mr. GREEN. OK. Mr. Skipp, you testified about potential for duplicative regulations. Under 2868, we would have ensured that facilities under MTSA would see only one regulator, the U.S. Coast 

Guard. Do you think that is important? 

Mr. SKIPP. I liked what I heard Under Secretary Beers say, 

which is the harmonizing between those two departments of 

CFATS and MTSA. And I think that would be great. It all depends 

on how you define harmonized. As long as there is not a redundancy or duplicative efforts, which I know is a concern of yours, 

then I think it would be fine. 

Mr. GREEN. I guess because when you rolled out the Transport 

Worker Card, believe me, I had a lot of constituent case work when 

constituents, because of whatever reason, we had to work case-bycase through Lockheed who had the contract. And like I said, we 

have 260,000 of those, more than that now probably, and we want 

to make sure that we don’t have to go through that again, don’t remake the wheel. Don’t we already have some—— 

Mr. SKIPP. Agreed. 

Mr. GREEN. Mr. Frederick, I am interested in your testimony you 

gave about the concerns of workers and regarding personnel security requirements. Are changes in 908 needed to ensure that workers’ rights are protected? 

Mr. FREDERICK. Yes. And in one of the examples that is in my 

written statement, the need for worker involvement in the process 

of the Site Security Plans is very important. And in order to have 

thorough and good worker participation, some safety net of protection for them, a whistleblower protection for them is necessary. You 

know, in almost any other instance we recognize the deficiencies of 

that and can see that at some workplaces it is very encouraged, 

workers are involved, and at others for many reasons it is not. So 

we are concerned that, yes, there should be some provisions to protect workers as they participate in this process. 

Mr. GREEN. And I know in your testimony I agree with you. And 

I guess because there are other agencies that also regulate these 

same plant sites like OSHA and every once in a while I still get 

to go speak at one of my what I call share committee that we have 

a group of industries that bring the community involved, the fence 

line and also the employees are there, both unionized and management, and sit down and talk with the constituents. CFATS doesn’t 

exempt that from current law like, for example, OSHA requirements. 

Mr. FREDERICK. Correct, and then some of that it has been, you 

know, referred to in the past by DHS as the employers certainly 

have the ability to do that, so it becomes somewhat of the voluntary piece for employers to do so. The problem is that not all employers volunteer. 

Mr. GREEN. OK. And having been on both sides of the bargaining 

table, the best way you get there is you talk to the folks actually 

producing a product and you can get the best ideas from them because they are living it every day. 

One of your exceptions, too, in your testimony, and you use the 

example of a chemical storage and tank farms, particularly with 

99 

berms, EPA regulates those now or the State Environmental Agencies with the deference of EPA, because we have had some problems with those berms that are not updated. We end up contacting 

EPA instead of using another law. So there is already some current 

law that we can deal with on enforcement of those. And again, I 

know your members are out there every day and we work with our 

locals every way we can. 

So Mr. Chairman, I appreciate it. I know I would like to talk a 

little bit more about IST because having managed a business, we 

didn’t call it inherently safer technology, but believe me, if we could 

save money and save on potential worker injuries, we used that as 

a part of our business practice. But thank you for your patience. 

Mr. SHIMKUS. Thank you. The chair now recognizes Mr. Murphy 

for 5 minutes. 

Mr. MURPHY. Thank you. And I appreciate all the panel’s comments. It is very helpful. 

Mr. Taber, with regard to the American Chemistry Council, how 

much have members spent overall—do you have any idea—in 

terms of—— 

Mr. TABER. I could answer that but I am not a member of the 

American Chemistry Council but the American Coatings Association. 

Mr. MURPHY. Well, how about Sherwin-Williams? I am sorry. 

Mr. TABER. That is OK. 

Mr. MURPHY. I thought you had some knowledge of that, too. 

Does anybody there know in terms of how much—— 

Mr. TABER. As far as the ACA goes I would say that we have not 

yet collected that data, party because we are awaiting the direct involvement with DHS on the interpretation of the Site Security 

Plans and Alternate Security Plans at the moment. 

Mr. MURPHY. I appreciate that. 

Mr. SKIPP. And I would echo that also. That is something we 

were waiting to find out more information from our people and how 

DHS will implement that. 

Mr. MURPHY. But are you able to share how much your own companies have invested in all of this in terms of compliance or in 

terms of working through the security issue? 

Mr. SKIPP. We have three relatively small facilities. It is just around $200,000. 

Mr. MURPHY. OK. Mr. Taber, do you have—— 

Mr. TABER. I can state it this way. It will likely be in the huge 

numbers in terms of the true capital cost. Right now we aggregate 

safety, health, environmental security—— 

Mr. MURPHY. Put together. 

Mr. TABER [continuing]. Expenditures and we are projecting a 

very large possible impact on the corporation as a function of this 

regulation. 

Mr. MURPHY. Mr. Allmond, do you have any comments in terms 

of money that is invested in some of these security measures? 

Mr. ALLMOND. Congressman Murphy, I have an approximate 

amount, you know, tens of millions of dollars, especially when you 

factor in the staff time, the employee time to actually go through 

the Site Security Plans. You know, there is a lot of staff time built 

into complying with this regulation, especially up front. 

100 

Mr. MURPHY. I see. Mr. Frederick, do you have any idea how 

much some of the companies you work with have invested in working on these issues of security? 

Mr. FREDERICK. We are not privy to that information. 

Mr. MURPHY. Is it working? OK. Very good. Sorry. 

Mr. FREDERICK. We typically don’t receive that information 

from—— 

Mr. MURPHY. But your workers are engaged in these processes? 

You talked about the importance of sharing—— 

Mr. FREDERICK. Yes. Yes. 

Mr. MURPHY. OK. And how about one of the other members 

here? Do you include workers in Site Security reviews and welcome 

their input? Can you give us an idea of how you use that? 

Mr. SKIPP. Sure. They participate on our safety committee. All 

employees do that. It is on a right-to-know basis. It is where their 

expertise might be able to help in one specific area, but as far as 

knowing the overall plan per se, they aren’t necessarily involved in 

every aspect of that. 

Mr. MURPHY. Is that done for security purposes? 

Mr. SKIPP. Yes. 

Mr. MURPHY. Same with you, Mr. Taber? 

Mr. TABER. Well, certainly under the OSHA programs, we are 

one of the leaders, at least in our firm with voluntary protection 

programs and OSHA cooperation and so we take the same perspective with safety and health as we do with security. I think some 

of the developing areas are the Employees Security Awareness 

Training programs that we are just on the verge of implementing 

that will take our security awareness and involvement with all employees to another level. 

Mr. MURPHY. Mr. Allmond, agree? 

Mr. ALLMOND. Well, our organization has a program called 

ChemStewards that encourages all of our members to include employees into the decision-making process. I think generally they 

would agree with Mr. Skipp and Mr. Taber as well. 

Mr. MURPHY. The reason I am asking that is Mr. Frederick 

brings up a point here and all of you are saying the companies recognize that people who do this every day have an inherent value 

in being able to provide that information. And given that, my impression when I have toured chemical facilities, even ones that 

maybe have been written up in the newspaper where someone 

snuck onto the site as part of a reporter’s story, they have invested 

a great deal in taking care and have asked employees for their 

ideas. Is this something we need to codify into law or is something 

that is being done? 

Mr. ALLMOND. It doesn’t need to be codified from my perspective 

and I am sure from our association’s perspective because it is part 

of good business practice and what we do every day. 

Mr. SKIPP. I would concur. I mean, as Mr. Green said, it is very 

important to tap into the knowledge of our expertise of our people 

and we do that every day through LEAN and other initiatives that 

it is just good business sense. 

Mr. MURPHY. OK. I appreciate that. We want to make this bill 

work and we want to have the flexibility for Homeland Security to 

enact it. We heard before that they are working carefully with 

101 

EPA. And I personally recognize I like it, as when I owned a business, I would ask my employees as well for suggestions along the 

way. The whole is greater than some of the parts and getting information from workers and goodness knows I believe with regard to 

management and employees, everybody wants to have a safe and 

secure workplace, and I would certainly encourage the association’s 

continuing to hold those high standards. 

I recognize I am out of time, Mr. Chairman. 

Mr. SKIPP. Can I make 1 other comment just about that? And I 

think that you didn’t get a lot of clear numbers as far as where 

things are. We are really looking for certainty, and I think that is 

what this CFATS bill will do in order for people to invest more. 

There is some holding back because people are not sure which way 

to go because they haven’t gotten enough feedback yet from the 

Agency. 

Mr. MURPHY. That is important. Thank you, Mr. Chairman. 

Mr. SHIMKUS. Thank you. The chair recognizes Mr. Butterfield 

for 5 minutes. 

Mr. BUTTERFIELD. Thank you very much, Mr. Chairman and 

Ranking Member. Ladies and gentleman, it is good to see all of the 

witnesses today and thank you very much for your willingness to 

come forward and to give us your testimonies. 

Mr. Frederick, let me start with you. In your testimony I am told 

that you said that ‘‘performance standards often result in cost and 

productivity taking precedence over safety.’’ Did I quote you correctly? 

Mr. FREDERICK. Yes. 

Mr. BUTTERFIELD. We have seen several examples in the past 

year alone of major industrial actors placing profits over the safety 

of their workers and the safety of the environment, notably, with 

the BP oil spill. It is a serious issue and CFATS should be structured to limit the ability of covered facilities to place too much emphasis on cost at the expense of worker safety or the safety of the 

surrounding area. 

Question: Can you give an example of these performance standards resulting in cost concerns outweighing the concerns of security? 

Mr. FREDERICK. Yes. Without the specific workplace but within 

the oil-refining industry, some of the performance-based standards—this is the day-to-day case of the performance is achieved on 

paper but on the shop floor where the folks are working around the 

hazardous materials, the shortcuts have been taken, the hole in the 

fence has been filled with a camera instead of a new fence, whatever the case may be. We could provide some specifics from specific 

facilities for the record after the hearing if you would like. 

Mr. BUTTERFIELD. Well, what about a specific requirement from 

DHS to address the problem? 

Mr. FREDERICK. And on that, in some of just the perimeter security issues, the issue has been around fencing and when a gap in 

the fence, a hole in the fence has been in place, other measures 

have been taken instead of putting the more secure fencing in 

place. 

The example from the testimony of the berms or dikes to keep 

the unexpected release of chemicals from a tank is for compliance 

102 

with other reasons but also comes into play the security because 

if there is a terrorist attack on that facility and the materials are 

released from more than 1 tank, oftentimes those are not designed 

to hold back that amount of the quantity of the materials within 

the tanks. 

Mr. BUTTERFIELD. Well, one thing leads to another. Then we get 

into a question of whether it is preferable to have a DHS-sponsored 

security measure requirement that guarantees a level of safety but 

may not be flexible enough for the variety of facilities that are 

tiered from traditional chemical plants or refineries to labs that are 

at our universities. We understand that security isn’t cheap and 

that one size does not fit all. It is a difficult job for DHS. 

I completely agree with you, with your assessment of the value 

of workers’ input to the process. Workers must be involved and 

they must also to feel free to blow the whistle without fear of reprisal. This is something we have talked about extensively in previous legislation on this issue. 

My final question is do you feel that the current CFATS program 

adequately protects whistleblowers? 

Mr. FREDERICK. No. We would not believe it does. However, at 

this juncture we also have not had cases to cite, only in feedback 

from our members that work in those facilities that they have some 

concerns that they have reservations about raising because there 

is not an adequate safety net for them to speak out on those issues. 

Mr. BUTTERFIELD. All right. Thank you. 

Mr. SKIPP. Congressman? 

Mr. BUTTERFIELD. Yes. I am going to yield. Yes, you may respond. 

Mr. SKIPP. May I respond to that also? 

Mr. BUTTERFIELD. I have a minute left, yes. Sure. 

Mr. SKIPP. I am Andrew Skipp and I run a chemical company in 

Connecticut and I can tell you that 90 percent of our members are 

owner/managers of their businesses. They live their business day 

in those facilities. There is nothing more important than the safety 

and security of those plants. 

And I can assure you that our members take that very seriously 

and that they don’t compromise for the benefit of just expediency. 

It is critical. It is our lifeblood. It is our livelihood. And so we take 

that initiative very seriously. 

The matter about whistleblowers, I can’t refer to that relative to 

CFATS, but certainly there are laws in place to protect them and 

it is something that we take very seriously in our business. 

Mr. BUTTERFIELD. Thank you. All right. Anyone else want to respond to that? I have a few seconds left. 

Mr. FREDERICK. Just I think the laws that are in place would 

not—for example, the protections within the OSHA Act would not 

protect a worker for calling into question something under the 

CFATS regulations. 

Mr. BUTTERFIELD. All right. Mr. Chairman, I will yield back my 

time. 

Mr. SHIMKUS. If the gentleman would yield me his last 4 seconds. 

Mr. BUTTERFIELD. Sure. 

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Mr. SHIMKUS. I just want to make sure, Mr. Frederick, that none 

of your comments are under CVI. In other words, the information 

that you were alluding to is under CVI? 

Mr. FREDERICK. In the example of the—— 

Mr. SHIMKUS. Well, you were giving some anecdotal stories and 

we want to make sure that—— 

Mr. FREDERICK. I don’t believe so. 

Mr. SHIMKUS. OK. 

Mr. FREDERICK. To my knowledge, no. 

Mr. SHIMKUS. OK. That is what we need to know. Thank you. 

The chair now recognizes Mr. Cassidy for 5 minutes. 

Mr. CASSIDY. I never knew steelworkers’ name was so long. I 

once sat on a plane next to a guy who worked for you all and who 

was I think doing mining, which I thought—so anyway, now kind 

of the light bulb goes on. 

Mr. Frederick, there was one sentence in your testimony in 

which you suggested you would oppose more extensive background 

checks for workers. Did I hear that correctly? 

Mr. FREDERICK. Yes. And our concern around background checks 

is twofold. One is to make certain that there is a process in place 

that if an error results of the background check, that that individual has an opportunity to clarify that error and correct it prior 

to losing his or her employment. 

Mr. CASSIDY. Now, I accept that, but inherent in having more involvement in a process is greater risk that a background check may 

show something which would eliminate somebody’s job frankly. I 

mean if it turns out a kid smoked marijuana in college and got 

busted for it and now he is 45, well, then that may come back and 

reflect upon him in a negative way. Would you object to, you know, 

drug screens, et cetera, all this that takes place? 

Mr. FREDERICK. Well, there are drug testing programs in a variety of—— 

Mr. CASSIDY. And I just use that as an example, not as a concrete particular. So it is not background checks in particular you 

object to or more even exhaustive ones. Rather it is the lack of safeguards if someone loses employment because of that. 

Mr. FREDERICK. Yes. And recognizing that there are necessary 

pieces of information that are needed. Our experience thus far has 

been that this is and will be a very expensive process, expensive 

and extensive, for a very limited amount of return of finding things 

more than somebody who perhaps had a minor item such as 

you—— 

Mr. CASSIDY. So if you will, kind of the principle that for last 

marginal benefit, you got to pay a heck of a lot of money? 

Mr. FREDERICK. And in some of the other examples we are talking about yes, there are costs associated with doing dangerous 

work. 

Mr. CASSIDY. And if you increase the cost, ultimately it is going 

to affect employment? 

Mr. FREDERICK. It may, yes. 

Mr. CASSIDY. So my concern is, for example, that that same principle is involved here. I mentioned earlier to the earlier witness I 

went to visit the nuclear power plant and I was struck how much 

security they have, three different perimeter fences. Even if they 

104 

cut a hole, there is a camera surveillance. And so they told me 

about how an armadillo wandered across and their motion detectors got it. 

Now, if we are going to have NRC do this level of requirement 

and overlay CFATS, do you see that as appropriate? 

Mr. FREDERICK. Well, specifically to the NRC provision, I don’t 

have firsthand knowledge or experience. Our union does not represent workers at nuclear generators—— 

Mr. CASSIDY. But you mentioned that in your testimony as kind 

of a concern that they are excluded. 

Mr. FREDERICK. The NRC. And so what I want to explain is that 

within the NRC they also have regulatory authority over non-energy producing facilities beyond the nuclear plants. And in some of 

those facilities, one example being the NRC has oversight of a very 

narrow piece of the production process, so a very large facility, narrow piece is NRC, but because the NRC has authority over that 

narrow piece, CFATS does not apply. For example, that is the facility that has 2 million pounds of hydrofluoric acid onsite and some 

of it in railcars offsite. That is a real concern that the NRC, small 

piece of the operation that they have oversight for, a large facility 

excluded from CFATS. 

Mr. CASSIDY. Now, my concern is that if we have overlay of federal agency over federal agency, that is not just a multiplier. That 

is an exponent in terms of the complexity and the expense of compliance. 

Now, it also seems this IST—I used the example of the Maginot 

Line where you have got this kind of, OK, this is the current technology but really there is something on the cusp but it has not 

been vetted, reviewed, public comments, so therefore it can’t be because the de facto standard becomes the IST. That actually seems 

like a counterproductive mechanism. I don’t see the problem—in 

fact, I see IST as almost the same problem you defined earlier 

going after marginal benefit with greater expense, ultimately costing jobs. 

Mr. FREDERICK. In some cases the using other technologies is 

certainly not costing jobs. There are many examples of better technologies being brought in place across worker health and safety, as 

well as site security. There are other examples that jobs have benefitted. 

Mr. CASSIDY. If you have IST, that becomes a de facto standard, 

and if it becomes a de facto standard, even if there is a better technology, it most likely won’t be implemented because there is a de 

facto standard issued by a reg 8 months ago even if 1 month ago 

there is a better technology that comes out. 

Mr. FREDERICK. However, if it is looked at and with a system in 

place as suggested in the testimony and in other folks that are 

looking at this issue currently in other bills, there are the ability 

to have a DHS appeals process that would ensure that the facility, 

the employer has the ability to refer this back with some questions 

and move on to—— 

Mr. CASSIDY. Now, I have been under this Federal Government 

now for 2 1⁄2 years but it is my impression that it dances like an 

elephant upon the head of a pin. It is very slow-moving. It is very 

awkward. It is very laborious and expensive to work through that 

105 

process. So I kind of return to my point that the reg issued 9 

months ago becomes a de facto standard and 2 years later you finally work through the appeals process and in the meantime you 

are 3 generations ahead what you originally offered on appeal is 

now outdated. Do you follow what I am saying? 

Mr. FREDERICK. Yes. 

Mr. CASSIDY. And so do you really see the bureaucracy in the appeals process working so well that we will always have the most 

current technology being used to secure our plants? 

Mr. FREDERICK. I see that we certainly would have better technology than is in place at the start of the process and the ability 

for the employer, the manufacturer to continue to move forward as 

long as it is within the scope of their security—— 

Mr. CASSIDY. But if there is a new technology that comes out and 

it is not part of the IST, what is the likelihood that it will be immediately implemented? 

Mr. FREDERICK. Well, and so perhaps I guess we are a little bit 

off of what we perceive the prescriptive standard on IST to look 

like. We believe that in the instance in some of the other applications of this issue that are in place, there is the flexibility for—— 

Mr. CASSIDY. Well, the assistant secretary actually, though, conceded the possibility that there would be a standard which would 

leave out something that would be technologically more advanced 

because it had not had a chance to be reviewed. And he actually, 

you know, frankly said yes, that is going to happen. He accepted 

that as a probability. And frankly that concerns me because I think 

that there is so much explosion of technology, we would be remiss 

in terms of safety and all of the other things if we didn’t have a 

standard which allowed its usage. 

I yield back. Thank you. 

Mr. SHIMKUS. The gentleman yields back his time. Unanimous 

consent for the ranking member for a minute. 

Mr. GREEN. Yes. I want to ask, your response, Mr. Frederick, to 

our colleague from Louisiana that because NRC has jurisdiction 

over, for example, nuclear facility but they don’t have jurisdiction 

over something else on that plant site that that would exempt any 

other regulation because NRC has it? 

Mr. FREDERICK. Just in this instance that I was referring to, just 

the CFATS regulation. 

Mr. GREEN. We are going to explore that because I know we have 

OSHA requirements at nuclear facilities and we really don’t want 

overlay and duplication but we do want somebody looking at it. 

Mr. FREDERICK. Correct. 

Mr. GREEN. And so that is the concern. 

Mr. SHIMKUS. And I thank my colleague. I have a couple of 

pieces of business to finish up. Unanimous consent request that a 

letter from Mr. Dent on this be submitted for the record. Without 

objection, so ordered. 

[The information follows:] 

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Mr. SHIMKUS. I also want to advise all members that we have 10 

legislative days to submit questions for the record and if you would 

be so good to return those questions to us to fulfill the hearing. 

With that, we do appreciate your time. Please feel free to visit 

with us on this issue as we move forward. We do want to bring 

some certainty to this. We do want to have a longer-term reauthorization of some size so that you all can move forward in helping 

in this process. So with that, the hearing is adjourned. 

[Whereupon, at 10:58 a.m., the subcommittee was adjourned.] 

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