Senate Committee Approves Amended H.R. 2868

This week the Senate Homeland Security and Government Affairs Committee unanimously approved an amended version of the Chemical Facility Anti-Terrorism Act of 2009 (H.R. 2868) offered by Sen. Susan Collins (R-Maine). The amended bill, which is very similar to legislation (S.2996) Sen. Collins introduced to the Senate in February of this year, removes H.R. 2868’s Inherently Safer Technology (IST) and citizen suit provisions, and rather than making the Chemical Facility Anti-Terrorism Standards (CFATS) permanent, would only extend the program in its current form for another three years (through October 4, 2013).

Earlier this month, Sen. Frank Lautenberg (D-NJ) introduced a new bill, “Secure Chemical Facilities Act” (S. 3599) in the Senate. That bill, which has been referred to the Senate Homeland Security Committee, is similar to the original version of H.R. 2868 (i.e., includes provisions for IST and citizen suits). However, it is unlikely that the Lautenberg bill or the Collins amendment will make much progress before the August recess. Rather, it seems inevitable that CFATS will once again be extended in its current form for one year through the 2011 Homeland Security Appropriations Bill, which is currently being marked-up by the House Appropriations Committee.

Chemical Sector Security Summit - Ammonium Nitrate

Section 563 of the Homeland Security Appropriations Act of 2008 gave the Department of Homeland Security (DHS) the authority to regulate the sale and transfer of ammonium nitrate. That same year, DHS published an Advanced Notice of Proposed Rule Making (ANPRM) summarizing the proposed ammonium nitrate regulations. Comments from the public were received on a variety of issues through the ANPRM and are currently being considered by DHS in developing a Notice of Proposed Rulemaking (NPRM). A DHS representative at the summit noted that the Department is completing an internal review of the NPRM and anticipates publishing the NPRM this fall. The rule will address:

• The definition of ammonium nitrate;
• Registration activities;
• Point of sale requirements;
• Record keeping;
• Reporting of loss or theft;
• Inspections and audits;
• Civil penalties;
• Adjudications and appeals; and
• Guidance materials.

Chemical Sector Security Summit Summary – MTSA and CFATS Initiatives

The 2010 Chemical Sector Security Summit included a panel discussion entitled “Multi-Agency Harmonization on Chemical and HazMat Security Regulations.” As part of that discussion, U.S. Coast Guard representative James Bull presented “Harmonization of MTSA and CFATS Regulations,” noting that the Coast Guard has been working with DHS’s Infrastructure Security Compliance Division (ISCD) since 2007, and has been closely involved with the Maritime Transportation Security Act (MTSA) and Chemical Facility Anti-Terrorism Standards (CFATS) Harmonization Working Group. The Coast Guard supports a coordinated DHS effort to ensure proper security for facilities and institutions handling hazardous materials, and the two agencies are working together toward a successful chemical facility regulatory regime.

The Coast Guard is conducting various site visits for comparative analysis and to distribute chemical facility lists to all Captain of the Port (COTP) zones. In this effort the Coast Guard hopes to expand CFATS awareness and exploit cross training opportunities. Although COTP zones must already adhere to MTSA and International Port Security Program (ISPS) obligations, the Coast Guard recognizes the need to engage with ISCD personnel and chemical inspectors.

Chemical Sector Security Summit Summary – Lessons Learned from Pre-Authorization Inspections (PAIs)

The Chemical Sector Security Summit included a breakout session entitled Inspections Process Lessons Learned, with speakers from both industry and the Department of Homeland Security (DHS). DHS noted that the primary lesson learned from the PAI process was that submitters need to provide more detail when completing their Site Security Plans (SSPs). Consistently, SSPs have been submitted with very little detail to explain a “Yes” or “No” answer. This is due in large part to the current design of the SSP tool. This lack of detail results in a facility not receiving proper credit for security items or processes currently in use by the site, and it ultimately leads to SSP disapproval.

The PAI is not an enforcement inspection, and DHS has enabled facilities to make changes to SSPs by unlocking the Chemical Security Assessment Tool (CSAT) and allowing sites to add additional information to the original submittal in order to update the SSP for resubmission after the PAI.

Chemical Sector Security Summit Summary- General DHS Updates

The 2010 Chemical Sector Security Summit took place in Baltimore, Maryland on July 7^th and 8^th. There were approximately 400 attendees, with half representing private and public corporations and the balance being from various governmental agencies. Topics included both general programmatic updates from the Department of Homeland Security (DHS), as well as more tailored presentations regarding chemical security.

The most current data presented by DHS indicate that they have received over 38,000 Top Screens and 6000 Security Vulnerability Assessment (SVA). Additionally, 4110 facilities have received a final tiering, with 887 facilities still awaiting final tiering notification. DHS anticipates completing all Final Tier 1 notifications by the end of the summer. The following is a breakdown of the facilities by tier designation:

Tier	Total Facilities with Final Tier	Total Facilities Awaiting Final Tier
1	226	4
2	531	40
3	1132	126
4	2221	717
Total	4110	887

With regard to physical visits, DHS has completed 47 Pre-Authorization Inspections (PAI), and is expected to increase PAIs to 30-40 per month. This increase in PAIs will be accomplished by adding 100 additional DHS Infrastructure Security Compliance Division (ISCD) staff to the existing 168 staff responsible for chemical security compliance.