By James L. Curtis and Craig B. Simonsen

The Department of Homeland Security (DHS) has published an Advance Notice of Proposed Rulemaking (ANPR) intended to “mature” the Chemical Facility Anti-Terrorism Standards (CFATS) program, and to identify ways to make the program more effective in achieving its regulatory objectives. 79 Fed. Reg. 48693 (August 18, 2014).

The CFATS program was intended to identify and regulate high-risk chemical facilities to ensure that they have security measures in place to reduce the risks associated with those chemicals. Many of the regulated facilities are part of the chemical sector – which employs nearly “one million people and earns revenues between $600 billion and $700 billion per year.” Other facilities with high-risk chemicals include “universities, oil and natural gas operators, and hospitals.”

This ANPR is part of an effort highlighted by a U.S. Environmental Protection Agency, U.S. Department of Labor, and the Department of Homeland Security recent publication of their first joint Report for the President, entitled “Actions to Improve Chemical Facility Safety and Security – A Shared Commitment,” published under the August 2013, Executive Order 13650. The EO was intended to enhance the safety and security at chemical facilities and reduce risks associated with hazardous chemicals to owners and operators, workers, and their neighboring communities. We previously blogged about the U.S. EPA’s Request for Information on its Clean Air Act Accidental Release Prevention Program, and about the U.S. DOL’s Request for Information on “Modernization” of OSHA’s PSM Standard. This CFATS program ANPR is the third prong action under the President’s EO.

In a recent blog, Caitlin Durkovich, the DHS Assistant Secretary for Infrastructure Protection, commented that “the CFATS program is an important part of our nation’s counterterrorism efforts as we work with our industry stakeholders to keep dangerous chemicals out of the hands of those who wish to do us harm. Since the CFATS program was created, DHS has actively engaged with industry to identify and work with high-risk chemical facilities to ensure they have security measures in place to reduce the risks associated with the possession of chemicals of interest. While there is still work to be done, DHS to date has approved nearly 1,000 facility site security plans and the pace to approve and inspect facilities continues to improve.”

Initially DHS had issued CFATS as an interim final rule. 72 Fed. Reg. 17688 (April 9, 2007). In November 2007, the Department adopted as Appendix A to CFATS (72 Fed. Reg. 65396) a final list of over 300 “Chemicals of Interest” (COI) that were listed as posing “significant risks to human life or health if released, stolen or diverted, or sabotaged.” Publication of the Appendix A list of COI brought the CFATS interim final rule into “full effect.”

Under the rules facilities that were initially determined by DHS to be “high-risk” needed to complete and submit a Security Vulnerability Assessment (SVA). If DHS made a final determination that a facility was high-risk, then that facility would be required to submit a Site Security Plan (SSP) for DHS approval. DHS points out in a fact sheet that “more than 48,000 preliminary assessments [(Top-Screens)] were reviewed by DHS from facilities with Chemicals of Interest. 3,986 facilities are currently covered by CFATS….  1,838 Security Plans [are] authorized.” DHS has now notified more than 8,895 facilities that they have been initially designated as “high-risk” and are now required to submit SVAs.

Generally, through this ANPR, the DHS is inviting interested persons to submit written comments, data, or views on how the current CFATS regulations might be improved. Specifically, DHS is asking for comments on the following topics:

  1. The information submission processes (i.e., the Top-Screen, SVA, and SSP submissions) and associated schedules;
  2. The means and methods by which facilities claim a statutorily exempt status and whether or not commenters think that deletions, additions or modification to the list of exempt facilities should be considered;
  3. The use of Alternate Security Programs in lieu of SVAs and, in particular, the current limitation on the use of Alternate Security Programs in lieu of SVAs to Tier 4 facilities;
  4. The, scope, tier applicability and processes for submitting and reviewing SSPs and Alternate Security Programs;
  5. The processes for submitting and evaluating requests for redetermination by chemical facilities previously determined by DHS to be high-risk; and
  6. The issuance of orders and the regulatory enforcement process.

Written comments on the ANPR are due on October 17, 2014.