As previously detailed in several of our prior posts, the Presidential Executive Order (EO) 13650Improving Chemical Facility Safety and Security (August 1, 2013) directs a Working Group of federal agencies, which includes representatives from the Departments of Environmental Protection (US EPA), Transportation (DOT) and Homeland Security (DHS), the Occupational and Safety and Health Administration (OSHA) and the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF),  to identify ways to reduce risks associated with hazardous chemicals and improve safety and security at chemical facilities in the United States.  To advance the objectives of the EO, DHS has issued notice (similar to OSHA and US EPA) that it is considering revisions to its Chemical Facility Anti-Terrorism Standards Program (CFATS) to “make the program more effective” in order to achieve the objectives of the EO.  The Advanced Notice of Proposed Rulemaking (ANPRM) was published in the Federal Register on August 18, 2014 and seeks interested party input on various proposals for possible revision.

The various proposals outlined in the ANPRM on which input is sought include the general regulatory approach of the CFATS program (i.e., the Top-Screen and tiering processes), including its effectiveness and ways in which it could be improved.  DHS also asks for comment on how the program has been applied at non-traditional chemical facilities and whether it should lift or maintain the indefinite extension granted to agricultural facilities for compliance with CFATS requirements.  Additionally, DHS is seeking input on whether its should modify or expand its 18 Risk Based Performance Standards (RBPS), which set forth standards for certain areas or aspects of a facility (e.g., perimeter security and cyber security).  

Another significant request under the ANPRM is whether DHS should expand its list of Chemicals of Interest (COI) set forth in Appendix A to the CFATS Interim Final Rule issued by DHS in 2007, presumably to include ammonium nitrate (which was at issue in the West Texas explosion last year) and other chemicals, as well as possibly delete some chemicals from the list.  DHS wants to hear from interested parties on the types and quantities of chemicals that should be considered for inclusion as well as the costs for regulated entities if they are listed as COIs.

Chemical facilities (and agricultural operations) should consider providing input at this time since the DHS has not fully fleshed out what revisions, if any, it may make to the CFATS.  Because this is an ANPRM, comments on these issues could help shape any proposed rule that DHS may develop for modifying the CFATS.  Comments will be accepted on the ANPRM through October 17.