DHS Publishes Advance Notice of Proposed Rulemaking to Streamline CFATS

From Paint: The U.S. Department of Homeland Security (DHS) on Aug. 18 published in the Federal Register an Advance Notice of Proposed Rulemaking (ANPRM) to update its Chemical Facility Anti-Terrorism Standards (CFATS) program. The agency is seeking comment submissions that will help identify ways to make the program more effective in achieving its regulatory objectives.

DHS is considering changing its general regulatory approach to the CFATS program, including both the enforcement process and the manner in which facilities submit information, claim exemptions, and challenge high-risk designations. In addition, DHS is also accepting comment on additions, deletions, and modifications to the program’s list of approximately 300 chemicals of interest. Finally, DHS is soliciting input on the CFATS program’s risk-based performance standards (RBPS), its treatment of “non-traditional chemical facilities,” the program’s alignment with other regulatory programs, and its impact on small business, as well as the clarity of its terminology. Characterizing users of hazardous chemicals covered by CFATS as “non-traditional,” DHS indicates that this group includes “agricultural product manufacturers; microchip manufacturers and paint and coatings manufacturers”

In soliciting responses to these questions, DHS has asked that comments be as detailed as possible and include analysis of the potential cost and benefits of the proposals. Comments may be filed using the Federal eRulemaking Portal at www.regulations.gov; Docket # DHS-2014-0016. The agency is accepting written comments through Oct. 17.

CFATS, which was first authorized under the 2007 DHS Appropriations Act, requires facilities with threshold quantities of particular “chemicals of concern” to complete a “top screen” notifying DHS that they possess such chemicals on site. Once notified, DHS can direct the facility to submit a Security Vulnerability Assessment (SVA) and then might assign the facility to one of four tiers based on the potential security threat on site, which triggers a requirement to submit an SSP to DHS for authorization and approval.

ACA’s members own and operate paint, coatings, resin, and chemical manufacturing facilities that are potentially subject to the CFATS provisions, and under CFATS’ statutory authority, many ACA members have submitted top screens identifying chemicals of interest and have been assigned preliminary or final tiers by the department. As a result, a number of ACA member companies have become subject to the CFATS Risk-Based Performance Standards.

Over the last year, DHS, along with the U.S. Environmental Protection Agency (EPA) and Occupational Safety and Health Administration (OSHA) have conducted several stakeholder “listening sessions,” as a part of an interagency chemical safety working group, formed as part of implementation of President Obama’s Executive Order (EO) 13650, “Improving Chemical Facility Safety and Security.” The EO followed the catastrophic explosion at the West, Texas, fertilizer facility in April 2013.

DHS is the last of the three federal agencies to seek public comment on potential changes to the chemical safety and security regulations subject to EO 13650.; OSHA sought feedback on its Process Safety Management (PSM) standard in December 2013, and EPA ( http://paint.org/news/industry-news/item/1555-executive-order-13650-update-epa-releases-request-for-information-on-risk-management-plan-modernization.html )recently published a similar notice concerning the Risk Management Program (RMP) sought information on its risk management program in July of this year.

DHS stated that it would conduct additional listening sessions on CFATS, though no dates or times have yet been publicized.

The agency’s ANPRM is available at
https://www.federalregister.gov/articles/2014/08/18/2014-19356/chemical-facility-anti-terrorism-standards]https://www.federalregister.gov/articles/2014/08/18/2014-19356/chemical-facility-anti-terrorism-standards