Chemical Facility Anti-Terrorism Standard (CFATS)

CAA-185

CFATS
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 Legislation & Rules

Chemical Facility Anti-Terrorism Act of 2009  The U.S. House of Representatives is currently considering two different bills for the reauthorization of CFATS.  H.R. 2477, introduced by Rep. Charlie Dent (R-PA), would extend the authorization of the existing interim CFATS legislation through October 1, 2012.    H.R. 2868, introduced by Rep. Bennie Thompson (D-MS),  would revise the current legislative requirements.  Specifically, this bill includes new provisions for inherently safer technology requirements for Tier 1 and Tier 2 facilities.  It also includes language relating to facilities that are presently regulated under the Maritime Transportation Safety Act of 2002 (MTSA).  Under H.R. 2828, every MTSA-regulated facility would be required to submit “Top Screen” information to DHS.  Should DHS determine that the facility is subject to CFATS, than the facility would be required to revise its “vulnerability assessments and facility security plans…to ensure compliance with CFATS requirements as well as MTSA.”  The current CFATS authorization expires on October 20, 2009.

Risk-Based Performance Standards Guidance for Chemical Facility Anti-Terrorism Standards, Notice of Availability, Federal Register, October 27, 2008 This notice announces the availability of a draft Risk-Based Performance Standards guidance associated with implementing CFATS.  The draft guidance document is intended for use by high-risk chemical facilities in selecting and implementing appropriate protective measures and practices.  It includes requirements for perimeter defense, access control, cyber safeguards, and response capability, as well as training, handling elevated threats, and recordkeeping.  DHS has requested public comments on the document.  Comments are due on November 26, 2008 and should reference Docket Number 2006-0073.

Appendix to Chemical Facility Anti-Terrorism Standards, Final Rule, Federal Register, November 20, 2007 This final rule revises the list of chemicals of interest, or COI, and their corresponding screening threshold quantity (STQ), which DHS included as Appendix A to 6 CFR 27.  Any facility that possesses (or later comes into possession of) a COI that meet or exceed the STQ for any applicable security issue must complete and submit a preliminary screening assessment, referred to as a Top-Screen, by January 22, 2008.

This publication marks a significant departure from the April 2007 draft Appendix A in several aspects including:

• Provisions (6 CFR 27.203-4) for fuels mixtures has been added to the requirements. A “facility must…include chemicals of interest in fuels (MFPA 1,2,3 or 4) when stored in above-ground tank farms, including tanks farms that are part of pipeline systems,” (6 CFR 27.203(b)(1)(v)).  If these facilities possess fuels that contain 1 percent or more COI at or above the STQ, they must submit a Top-Screen.  For example, STQ for butane is 10,000 pounds.  A facility that possesses 200,000 pounds (approximately 33,000 gallons) of gasoline containing five percent butane, including product within piping, would be required to complete a Top-Screen.

• Draft Appendix A referenced a single STQ per chemical, but the final rule specifies three STQ categories, each carrying different applicability rules. Instructions on how to calculate applicable quantities of COI are included in the Federal Register notice.

• The “any amount” specifications in the draft Appendix have been replaced with numerical quantities.

• A higher STQ has been specified for propane.

CFATS excludes those terminal facilities covered under MTSA regulations.

6 CFR 27 This rule imposes federal security regulations for high risk chemical facilities. Facilities that are currently regulated under the Coast Guard’s Maritime Transportation Security Act, (MTSA) Section 105, are excluded from this rule. Specifically, the rule requires owners of chemical facilities housing certain quantities of specified chemicals to complete a preliminary screening assessment. This assessment will be used to determine the level of risk associated with the facility.

Unlike the advanced notice of proposed rule making, the final rule does not pre-empt existing state laws. More information can be found on the DHS Web site.

Chemical Facility Anti-Terrorism Standards, Advance Notice of Proposed Rule Making, Federal Register, December 28, 2006 This notice advises of proposed regulations for chemical plant security and seeks industry comments on a variety of policy and implementation issues.  

Department of Homeland Security 2007 Appropriations Act, Title V: General Provisions, Section 550, October 4, 2006 This act provides the DHS with the authority to regulate the security of “high-risk chemical facilities.” It mandates the Secretary to issue an interim final rule that provides risk-based performance standards for the security of chemical facilities and it requires that this rule be proposed by the Secretary on or before April 4, 2007. The regulatory authority under this act expires the sooner of three years hence or once a permanent, comprehensive chemical facility security legislation is enacted.

Updates, Comments & Other Reports

June 2009 At the Chemical Security Summit, held June 29 – July 1 in Baltimore, MD, DHS indicated that it had recently notified 678 facilities, including several gasoline facilities, that they have been preliminarily determined to be Tier 2 facilities.  Tier 2 facilities have 120 days to submit their very detailed Site Security Plans (SSPs).  Given the level of detail that DHS expects in the SSPs (CAD drawings, staffing plans, audit protocols, etc.), these will be large efforts within a significant amount of strategy needed or the SSPs will become unworkable long term.   Earlier this year, DHS notified 195 facilities that they preliminarily being designated as a Tier 1 facility.  DHS also indicated that 5,000 additional facilities are expected to be preliminarily designated as Tier 3 or 4.  Tier 3 and 4 facilities are likely to receive their tiering designation letters  within the next 2 months.

May 2009 On May 13, ILTA submitted a Petition for a Declaratory Order to the DHS, requesting that DHS declare gasoline, as a mixture with a National Fire Protection Association flammability hazard rating of 3, exempt from the Chemical Facility Anti-Terrorism Standards.  The petition challenges DHS’s violation of the procedural requirements of the Administrative Procedure Act, focusing on its violation of the “logical outgrowth test.”  ILTA claims that DHS violated this when the agency failed to give the regulated community adequate notice of its intent to regulate mixtures, including gasoline.  In addition, the petition alleges that DHS failed to adequately consider the causes of the Buncefield incident in the context of the terrorist attack scenarios under CFATS.  To remedy these and other stated deficiencies, the petition recommends specific changes to the CFATS regulatory language preamble.  ILTA members may access this petition by logging onto the Member’s Only Section of our website. 

March 2009 Revised tiering letters for gasoline facilities under CFATS were posted by DHS on February 13.  In June 2008, a total of 435 facilities were preliminarily tiered as high-risk due to gasoline.  In November 2008, 380 of these facilities exercised an option to resubmit a Top Screen Application.  Of these, 355 remained preliminarily tiered.  These 355 facilities will be required to submit a security vulnerability assessment (SVA) in compliance with CFATS.  All SVAs are due on May 14, 2009.

January 2009 DHS has indicated that revised tiering letters for gasoline facilities that re-submitted a top-screen filing will be mailed during the middle of February.  Terminals that receive a preliminarily tiering at this time will be required to complete a Security Vulnerability Assessment (SVA), likely due within 60-120 days.  DHS also noted that the SVA process is time-intensive, recommending the following process for completion of the SVA:

1. Become familiar with SVA requirements, and double-check top-screen submittals for accuracy;

2. Conduct a facility site review;

3. Include a facility management team in deciding how to respond to each SVA question and scenario; and,

4. Enter the DHS online “SVA tool” and complete the submittal.

RELATED ILTA ARTICLES

ILTA provides a monthly newsletter to its membership. Members may log in to the Member Resources page to access archived newsletters. The following is a list of articles ILTA has published in its newsletter relating to Chemical & Facility Security.

• New Chemical Facility Security Bill May Eliminate MTSA Port Facility Exemption, July 2009 Issue (p.2)

• ILTA Files Petition Requesting DHS to Exempt Gasoline Terminals from CFATS, June 2009 Issue (p.2)

• DHS Finishes Long List of CFATS Site Security Plan Questions for Tier I Facilities, April 2009 Issue (p.2)

• DHS Revises Its Preliminary List of Gasoline Facilities to be Regulated Under CFATS, March 2009 Issue (p.2)

• Gasoline Terminals Will begin the CFATS SVA Process During February, February 2009 Issue (p.2)

• DHS Considers Revised Top Screen Responses Under CFATS, December 2008 Issue (p.2)

• DHS Seeks Comment on CFATS Risk-Based Performance Standards, November 2008 Issue (p.3)

• Industry Groups Confront DHS on Gasoline, October 2008 Issue (p.4)

• Technical Analysis Used to Challenge CFATS Rule, September 2008 Issue (p.2)

• Concerns Abound Regarding DHS Preliminary CFATS Tiers at Gasoline Facilities, August 2008 Issue (p.2)

• CFATS Takes Center Stage at Chemical Sector Security Summit, August 2008 Issue (p.3)

• DHS Issues Initial Risk Teiring Letters Under CFATS, July 2008 Issue (p.2)

• Congress Seeks New Chemical Facility Rule, February 2008 Issue (p.2)

• Congress Seeks New Chemical Facility Security Rule, February 2008 Issue (p.2)

• DHS Changes Rules for Facilities Required to Report Under CFATS…Again, January 2008 Issue (p.4)
• Chemical Facility Security ‘Appendix A’ Unexpectedly Captures Fuel Terminals, December 2007 Issue (p.3)
• Start of TWIC Enrollment and Publication of CFATS Final ‘Appendix A’ Remain Uncertain,  October 2007 Issue (p.4)
• Chemical Facility Rules Go Into Effect June 8, June 2007 Issue (p.3)
• DHS Proposes Chemical Security Rules, January 2007 Issue (p.2)
• Senate Committee Passes Chemical Security Bill, July 2006 Issue (p.1)
• New Chemical Security Bill Introduced, May 2006 Issue (p.1)
• House Chemical Facility Security Bill Introduced, April 2006 Issue (p.1)
• Chertoff Supports Federal Regulation of Security at Chemical Plants, April 2006 Issue (p.2)
• DHS Budget Creates Office for Chemical Security Site Security, March 2006 Issue (p.1)
• GAO Report Says Federal Security Requirements for Chemical Facilities are Needed, March 2006 Issue (p.2)