[Federal Register Volume 79, Number 159 (Monday, August 18, 2014)]
[Proposed Rules]
[Pages 48693-48696]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-19356]

Proposed Rules
                                                Federal Register

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.


Federal Register / Vol. 79, No. 159 / Monday, August 18, 2014 / 
Proposed Rules

[[Page 48693]]


Office of the Secretary

6 CFR Part 27

[Docket No. DHS-2014-0016]
RIN 1601-AA69

Chemical Facility Anti-Terrorism Standards

AGENCY: National Protection and Programs Directorate, DHS.

ACTION: Advance notice of proposed rulemaking.


SUMMARY: Section 550 of the Department of Homeland Security 
Appropriations Act of 2007 provides the Department of Homeland Security 
(DHS or Department) with the authority to regulate the security of high 
risk chemical facilities. To implement this authority, DHS issued the 
Chemical Facility Anti-Terrorism Standards (CFATS) regulation in 2007. 
DHS is initiating this rulemaking process as a step towards maturing 
the CFATS program and to identify ways to make the program more 
effective in achieving its regulatory objectives. This Advance Notice 
of Proposed Rulemaking (ANPRM) provides an opportunity for the 
Department to hear and consider, during the development of an updated 
CFATS regulation, the views of regulated industry and other interested 
members of the public on their recommendations for program 

DATES: Written comments must be submitted on or before October 17, 

ADDRESSES: You may submit comments, identified by docket number DHS-
2014-0016, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: U.S. Department of Homeland Security, National 
Protection and Programs Directorate, Office of Infrastructure 
Protection, Infrastructure Security Compliance Division, 245 Murray 
Lane, Mail Stop 0610, Arlington, VA 20528-0610.

FOR FURTHER INFORMATION CONTACT: Jon MacLaren, Rulemaking Section 
Chief, Office of Infrastructure Protection, Infrastructure Security 
Compliance Division, 245 Murray Lane SW., Mail Stop 0610, Washington, 
DC 20528; telephone 703-235-5263.


Abbreviations and Terms Used in This Document

ANPRM--Advance Notice of Proposed Rulemaking
ASP--Alternative Security Program
CFATS--Chemical Facility Anti-Terrorism Standards
CFR--Code of Federal Regulations
COI--Chemicals of Interest
CSAT--Chemical Security Assessment Tool
CVI--Chemical-terrorism Vulnerability Information
DHS or Department--Department of Homeland Security
E.O.--Executive Order
FR--Federal Register
Pub. L.--Public Law
RBPS--Risk Based Performance Standards
SSP--Site Security Plan
STQ--Screening Threshold Quantity
SVA--Security Vulnerability Assessment

I. Background

    Section 550 of the Department of Homeland Security Appropriations 
Act of 2007 \1\ (Pub. L. 109-295) authorized the Department to regulate 
the security of chemical facilities that, in the discretion of the 
Secretary, present high levels of security risk. Under the Section 550 
authority, on April 9, 2007, DHS issued the CFATS interim final rule, 
codified at 6 CFR part 27. See 72 FR 17688.\2\ Additionally, in 
November 2007, the Department adopted as Appendix A to CFATS a final 
list of over 300 Chemicals of Interest (COI) that pose significant 
risks to human life or health if released, stolen or diverted, or 
sabotaged. DHS also adopted some additional provisions that clarify how 
Appendix A is to be applied under CFATS. See 72 FR 65396.\3\ 
Publication of the Appendix A regulations brought the CFATS interim 
final rule into full effect.

    \1\ The CFATS authorizing statue can be found online at: http://www.dhs.gov/xlibrary/assets/chemsec_cfats_lawsregsec_authorizing_statute.pdf.
    \2\ The CFATS interim final rule can be found online at: http://www.gpo.gov/fdsys/pkg/FR-2007-04-09/pdf/E7-6363.pdf.
    \3\ Appendix A can be found online at: http://www.gpo.gov/fdsys/pkg/FR-2007-11-20/pdf/07-5585.pdf.

    Under CFATS, any chemical facility (other than certain facilities 
expressly exempted by Section 550) \4\ that possesses any COI at or 
above the applicable Screening Threshold Quantity (STQ) specified in 
Appendix A for that COI must complete and submit to DHS through the 
Chemical Security Assessment Tool (CSAT) \5\ certain consequence-based 
information (the ``Top-Screen''). Any facility initially determined to 
be high-risk after DHS's review of the facility's Top-Screen and/or 
other relevant information that comes to the Department's attention, is 
assigned a preliminary risk-based tier (Tiers 1-4) \6\ and must then 
submit to DHS a Security Vulnerability Assessment (SVA) per section 
27.215 (Tier 4 facilities may submit an Alternate Security Program 
(ASP) in lieu of an SVA). DHS evaluates the SVA and other relevant 
information to make a final determination as to whether the facility is 
high-risk and, if so, which tier it should be assigned to. Any facility 
that is finally determined to be high-risk must submit, obtain DHS 
approval of, and then implement a Site Security Plan (SSP), or ASP in 
lieu of an SSP, that describes the security measures the facility 
utilizes to meet the appropriate

[[Page 48694]]

level of performance under 18 applicable Risk Based Performance 
Standards (RBPS).

    \4\ Exempted facilities include facilities regulated pursuant to 
the Maritime Transportation Security Act of 2002, Public Law 107-
295, as amended; public water systems, as defined by Section 1401 of 
the Safe Drinking Water Act, Public Law 93-523, as amended; 
treatment works, as defined in Section 212 of the Federal Water 
Pollution Control Act, Public Law 92-500, as amended; any facility 
owned or operated by the Department of Defense or the Department of 
Energy, or any facility subject to regulation by the Nuclear 
Regulatory Commission.
    \5\ The CSAT is an information technology system primarily 
designed to collect facility information through specific 
applications for submitting Top-Screens, SVAs, SSPs, and ASPs. See 6 
CFR 27.105.
    \6\ CFATS places covered, high-risk chemical facilities into one 
of four tiers, with Tier 1 facilities being the highest risk and 
Tier 4 facilities being the least high-risk. Facilities that do not 
present a high-risk do not receive a Tier level and are not subject 
to additional CFATS requirements. When determining if a facility is 
high-risk, the Department is primarily focused on the potential 
consequences associated with a successful terrorist attack on the 
facility (including the use of stolen or diverted materials in a 
separate attack offsite). A threat factor also is incorporated into 
the risk assessment for facilities with release hazards.

    During the review process, DHS compares specific security measures 
reported in the SSP against the RBPS to determine whether the SSP 
adequately addresses the applicable RBPS in a manner commensurate with 
the facility's risk-based tier and other circumstances as outlined in 
section 27.230. Once DHS has determined that the SSP appears to be 
adequate, DHS will authorize the SSP or ASP, and notify the facility as 
such via a Letter of Authorization. DHS Chemical Inspectors must then 
conduct an on-site authorization inspection in accordance with sections 
27.245(a)(ii) and 27.250. The results of the authorization inspection 
help to inform DHS's decision on whether the SSP or ASP should be 
approved. Upon approval, the Department issues the facility a Letter of 
Approval, after which the facility is subject to compliance inspections 
to verify that the facility is carrying out its approved SSP or ASP. 
See 6 CFR 27.245(a)(iii). The regulations also establish procedures for 
DHS to notify a facility that the SSP or ASP is deficient, require 
consultations between DHS and the facility to try to resolve specific 
deficiencies, and authorize DHS to issue a Letter of Disapproval if the 
deficiencies are not addressed by the facility in a timely manner. See 
6 CFR 27.245(b).
    Since the publication of the CFATS interim final rule, the 
Department has met several significant milestones. As of June 17, 2014, 
DHS has received more than 48,500 Top-Screens submitted by chemical 
facilities. As of June 17, 2014, DHS has notified more than 8,895 
facilities that it has initially designated them as high-risk and thus, 
they are required to submit SVAs. DHS has completed its review of 
approximately 8,830 submitted SVAs. As of June 17, 2014, CFATS covers 
4,019 high-risk facilities nationwide; of these 4,019 facilities, 3,261 
are currently subject to final high-risk determinations and submission 
of an SSP or ASP; and 758 are currently pending a final tier. As of 
June 17, 2014, the Department has authorized SSPs/ASPs for 1,648 
facilities, conducted authorization inspections at 1,204 facilities, 
and approved SSPs/ASPs for 859 facilities.\7\

    \7\ Under 6 CFR 27.245(a)(2), DHS ``may disapprove a Site 
Security Plan that fails to satisfy the risk-based performance 
standards established in 27.230.'' If DHS were to disapprove an SSP 
or ASP, DHS would also simultaneously issue, pursuant to 6 CFR 
27.300(a), an Order directing the facility to re-submit its SSP/ASP 
to include security measures that satisfy applicable RBPS. If the 
facility fails to do so, DHS could then assess civil penalties and/
or direct the facility to cease some or all operations, pursuant to 
6 CFR 27.300(b). Under 6 CFR 27.310, however, the facility has the 
option of contesting any disapproval/order through an administrative 
adjudication. To date, DHS has not disapproved any SSPs/ASPs.

    The CFATS program is an important part of our Nation's 
counterterrorism efforts. DHS works 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 engaged with 
industry to identify high-risk chemical facilities to ensure they have 
security measures in place to reduce the risks associated with the 
possession of chemicals of interest. The progress made in the CFATS 
program over the last several years has significantly enhanced the 
security of the Nation's chemical infrastructure; however, to more 
fully mature the program, DHS is initiating this rulemaking process to 
help it identify how to make the CFATS program more effective in 
achieving its regulatory objectives. In particular, DHS is interested 
in comments on the topics described in Part IV of the ANPRM to include 
the general regulatory approach, treatment of non-traditional chemical 
facilities, clarification of terminology, Risk Based Performance 
Standards, Appendix A, considerations for small businesses, and 
alignment with other regulatory programs.
    Further, on August 1, 2013, the President issued Executive Order 
(E.O.) 13650--Improving Chemical Facility Safety and Security, to 
enhance the safety and security of chemical facilities and reduce the 
risks associated with hazardous chemicals to owners, operators, 
workers, and communities. The E.O. directs the Federal Government to: 
improve operational coordination with State, local, and tribal 
partners; enhance Federal agency coordination and information; 
modernize policies, regulations, and standards; and work with 
stakeholders to identify best practices.\8\ As detailed in the May 2014 
E.O. Final Report, DHS is taking a number actions to build a stronger 
CFATS program, one of which is the issuance of this ANPRM as an initial 
step in seeking input on improving the CFATS regulations themselves.\9\

    \8\ The E.O. established a Chemical Facility Safety and Security 
Working Group to oversee the effort, which is tri-chaired by the 
Department of Labor, the Department of Homeland Security, and the 
Environmental Protection Agency, and includes leadership and subject 
matter experts from the Department of Justice, the Department of 
Agriculture, and the Department of Transportation.
    \9\ For more information on E.O. 13650 and the May 2014 Final 
Report, visit: https://www.osha.gov/chemicalexecutiveorder/index.html.

II. Written Comments

A. In General

    This ANPRM will provide an opportunity for the Department to hear 
and consider the views of regulated industry and other interested 
members of the public on their recommendations for CFATS program 
modifications and improvements.
    DHS invites interested persons to submit written comments, data, or 
views on how the current CFATS regulations, 6 CFR part 27, might be 
improved. Comments that would be most helpful to DHS include the 
questions and issues identified in Part IV of this document. Please 
explain the reason for any comments with available data, and include 
other information or authority that supports such comments. The 
Department encourages interested parties to provide specific data that 
documents the potential costs of modifying the existing regulatory 
requirements pursuant to the commenter's suggestions; the potential 
quantifiable benefits including security and societal benefits of 
modifying the existing regulatory requirements; and the potential 
impacts on small businesses of modifying the existing regulatory 
    DHS requests that commenters discuss potential economic impacts, 
whenever possible, in terms of quantitative benefits (e.g., reductions 
in injuries, fatalities, and property damage), costs (e.g., compliance 
costs or decreases in production), and offsets to costs (e.g., less 
need for maintenance and repairs) when providing feedback on this 
ANPRM. DHS also requests that commenters provide data and information 
on economic effects that suggestions may have on market conditions or 
services (e.g., market structure and concentration), and in particular, 
any special circumstances related to small entities, such as potential 
market-structure disruptions or uniquely high costs that small entities 
may bear.
    DHS requests that commenters discuss economic impacts in as 
specific terms as possible. For example, if a regulatory or policy 
change would necessitate additional employee training, then helpful 
information would include the following: The training courses 
necessary; the types of employees or contractors who would receive the 
training; topics covered; any retraining necessary; and the training 
costs if conducted by a third-party vendor or in-house trainer. The 
Department invites comment on the time and level of expertise required 
to implement commenter suggestions,

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even if dollar-cost estimates are not available.
    Feedback that simply states a stakeholder feels strongly that DHS 
should modify CFATS, without including actionable data, including how 
the proposed change would impact the costs and benefits of CFATS, is 
much less useful to DHS. To help DHS organize and review all comments, 
please identify the relevant provision of 6 CFR part 27 that relates to 
the specific comment provided (e.g., 6 CFR 27.100). If the commenter's 
suggestion is on a topic that is not covered by the current regulation, 
please note that in the submission.
    Written comments may be submitted electronically or by mail, as 
explained previously in the ADDRESSES section of this ANPRM. To avoid 
duplication, please use only one of these methods to submit written 
    Except as provided below, all comments received, as well as 
pertinent background documents, will be posted without change to http://www.regulations.gov, including any personal information provided.

B. Handling of Proprietary, Sensitive and Chemical-Terrorism 
Vulnerability Information

    Interested parties are encouraged to submit comments in a manner 
that does not include any discussion of trade secrets, proprietary 
commercial or financial information, Chemical-terrorism Vulnerability 
Information (CVI), or any other category of sensitive information \10\ 
that should not be disclosed to the general public. If it is not 
possible to avoid such discussion, however, please specifically 
identify any proprietary or sensitive information contained in the 
comments with appropriate warning language (e.g., any CVI must be 
marked and handled in accordance with the requirements of 6 CFR 
27.400(f)), and submit them by mail to the individual listed in the FOR 

    \10\ For example, information covered under Sensitive Security 
Information (SSI).

    DHS will not place any proprietary or sensitive comments in the 
public docket; rather, DHS will handle them in accordance with 
applicable safeguards and restrictions on access. See e.g., 6 CFR 
27.400. See also the DHS CVI Procedural Manual, ``Safeguarding 
Information Designated as CVI,'' September 2008, located on the DHS Web 
site at: www.dhs.gov/critical-infrastructure-chemical-security. DHS 
will hold any such comments in a separate file to which the public does 
not have access, and place a note in the public docket that DHS has 
received such materials from the commenter. DHS will provide 
appropriate access to such comments upon request to individuals who 
meet the applicable legal requirements for access to such information.

III. Listening Sessions

A. Purpose

    The Department plans to hold multiple public listening sessions to 
solicit the public's views on the ANPRM and how the current CFATS 
regulation might be improved. DHS plans to announce dates, times and 
locations of these public listening sessions on the Department's 
Chemical Security Web site at www.dhs.gov/critical-infrastructure-chemical-security.

B. Procedures and Participation for the Listening Sessions

    Each meeting will be open to the public. DHS will use sign-in 
sheets to voluntarily collect contact information from the attending 
public and to properly log oral comments received during the sessions. 
Providing contact information will be voluntary, and members of the 
public may also make oral comments without providing their names. 
Seating may be limited, but session organizers will make every effort 
to accommodate all participants. A listening session may adjourn early 
if all commenters present have had the opportunity to speak prior to 
the scheduled conclusion of the session. For information on facilities 
or services for individuals with disabilities or to request special 
assistance at the public listening sessions, contact Mr. Jon MacLaren 
at the telephone number or email address indicated under the FOR 
    For members of the public who cannot attend a scheduled listening 
session, a copy of any presentation provided by the Department at the 
sessions will be made available via the Department's Chemical Security 
Web site at www.dhs.gov/critical-infrastructure-chemical-security. In 
addition, DHS will place a transcript of each of these public listening 
sessions in the docket for this rulemaking.

IV. Questions for Commenters

    To help DHS identify ways, if any, to improve the manner in which 
it administers CFATS, DHS seeks public comments on any and all aspects 
of 6 CFR part 27, including both the CFATS Interim Final Rule and 
Appendix A. Areas that DHS is most interested in receiving comments on 
include, but are not limited to, the following:
    a. General Regulatory Approach--Comments on how the Department 
could continue to improve its current approach toward identifying CFATS 
covered facilities and ensuring their compliance with CFATS 
requirements, such as:
    (1) the information submission processes (i.e., the Top-Screen, 
SVA, and SSP submissions) and associated schedules; \11\

    \11\ Submission schedules are detailed in 6 CFR 27.210.

    (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 
    (3) the use of ASPs in lieu of SVAs and, in particular, the current 
limitation on the use of ASPs in lieu of SVAs to Tier 4 facilities;
    (4) the, scope, tier applicability and processes for submitting and 
reviewing SSPs and ASPs;
    (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.
    DHS also requests that the commenter provide, in as much detail as 
possible, an explanation why the regulatory approach should be 
modified, streamlined, expanded, or removed, as well as specific 
suggestions of the ways DHS can better achieve its regulatory 
    b. Treatment of Non-Traditional Chemical Facilities--DHS recognizes 
that a one-size-fits-all approach may not be optimal for such a diverse 
regulated community, and requests comments regarding the applicability 
of existing CFATS requirements and processes (e.g., Top-Screen/SVA/SSP 
formats and submission schedules; risk-based performance standards; 
holding times for COI) to non-traditional chemical facilities covered 
under CFATS.\12\ DHS also is particularly interested in comments on 
maintaining, lifting, or partially lifting the indefinite extension 
from the Top-Screen submission

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deadline for agricultural production facilities issued in December 

    \12\ The expansive and dynamic nature of the community that uses 
potentially hazardous chemicals and that have facilities that are 
covered by CFATS include, but are not limited to many types of 
facilities that are not traditionally considered ``chemical 
facilities,'' such as agricultural product manufacturers; microchip 
manufacturers; paint and coatings manufacturers; mines; hospitals; 
racecar tracks; and colleges and universities. With the exception of 
agricultural production facilities, the CFATS processes and 
requirements are the same for all covered facilities.
    \13\ In December 2007, DHS exercised its discretion under the 
CFATS regulation by granting an indefinite extension from the Top-
Screen submission deadline for agricultural production facilities 
that use chemicals of interest (COI) and COI-containing products for 
agricultural production purposes (see 73 FR 1640). Examples of 
agricultural production facilities include: farms, ranches and range 
land, livestock facilities, turf grass growers, golf courses, 
nurseries and floricultural operations, and public and private 

    c. Clarification of Terminology--Comments regarding the utility, 
clarity and accuracy of definitions currently found in 6 CFR 27.105, 
such as, but not limited to, the definitions of ``A Commercial Grade'' 
and ``A Placarded Amount.'' DHS also seeks comments on the utility of 
including definitions, and what those definitions should be, for the 
terms ``material modifications,'' ``critical asset,'' and ``site 
asset;'' and ``inspection.'' DHS invites comments on recommendations 
for additional terms used in the current CFATS regulations that may 
warrant further clarification.
    d. Risk Based Performance Standards \14\--Comments on whether and 
how DHS should clarify or modify the 18 RBPS in 6 CFR 27.230, whether 
DHS should combine and/or eliminate any of the existing RBPS, and 
whether DHS should adopt any additional RBPS.

    \14\ CFATS establishes eighteen Risk-Based Performance Standards 
(RBPSs) that identify the areas for which a facility's security 
posture will be examined, such as perimeter security, access 
control, personnel surety, and cyber security. To meet the RBPSs, 
covered facilities are free to choose whatever security programs or 
processes they deem appropriate, so long as they achieve the 
requisite level of performance in each applicable area. The programs 
and processes that a high-risk facility ultimately chooses to 
implement to meet these standards must be described in the Site 
Security Plan (SSP) that every high-risk chemical facility must 
develop pursuant to the regulations. The RBPS guidance document is 
available online at: http://www.dhs.gov/xlibrary/assets/chemsec_cfats_riskbased_performance_standards.pdf.

    e. Appendix A--Comments on all aspects of CFATS Appendix A, 
    (1) Comments on the possible addition of chemicals to, and/or the 
deletion or modification of certain COI currently listed in Appendix A;
    (2) any term utilized in 6 CFR 27.203, and the applicability and/or 
modification of STQs as the bases for listing COI (e.g., by security 
issue(s)); and
    (3) the concentration and mixtures rules associated with Appendix 
A, which are described in 6 CFR 27.204.
    f. Small Business Considerations--Comments regarding considerations 
specific to small businesses.
    g. Alignment with Other Regulatory Programs--Comments regarding how 
the Department may be able to better align CFATS and other existing 
chemical facility regulations, including comments on any duplication or 
overlap that may exist between CFATS and another regulatory 
program.\15\ When providing comments on this topic, DHS encourages 
commenters to provide the specific citations to the regulatory regimes 
that may duplicate or overlap with the requirements under CFATS as well 
as a specific description of the duplicative or overlapping 

    \15\ Information on other chemical safety and security programs 
that may impact CFATS-regulated facilities is provided in the 
preamble to the CFATS Final Rule (see 72 FR 17689), as well as the 
E.O. 13650 May 2014 Final Report.

    In addressing these topics, DHS encourages interested parties to 
provide specific data that documents the potential costs of modifying 
the existing regulatory requirements pursuant to the commenter's 
suggestions; the potential quantifiable benefits including security and 
societal benefits of modifying the existing regulatory requirements; 
and the potential impacts on small businesses of modifying the existing 
regulatory requirements. Commenters might also address how DHS can best 
obtain and consider accurate, objective information and data about the 
costs, burdens, and benefits of the CFATS Interim Final Rule and 
Appendix A, and whether there are lower cost alternatives that would 
allow the Department to continue to achieve its security goals 
consistent with the law.

Jeh Charles Johnson,
[FR Doc. 2014-19356 Filed 8-15-14; 8:45 am]