Homeland Security Law and Policy Blog

Congressional Research Service Issues Chemical Security Report

2012-01-20T12:23:00.000-06:00

The Congressional Research Service (CRS) recently published its latest report on the Chemical Facility Anti-Terrorism Standards (CFATS) program. The report reviews the CFATS legislation offered in the 112th Congress, discusses several ongoing policy issues related to CFATS and identifies various policy options for Congress to consider.

Encoding Error May Cause TWICs to be Rejected by Electronic Readers

2011-12-13T15:44:00.001-06:00

The Transportation Security Administration (TSA) recently announced that an encoding error on some 26,000 Transportation Worker Identification Credentials (TWICs) may result in those TWICs being rejected by electronic TWIC readers. The error – which only affects cards issued prior to April 5, 2011 – resulted from a code number being incorrectly embedded on the card’s microchip.

TSA has published a list of TWIC serial numbers that may have the encoding error and will replace affected cards free of charge. TSA has also published a FAQ with further instructions on obtaining a replacement TWIC.

GAO Report: Coast Guard Inspections at Offshore Energy Facilities

2011-11-04T10:31:00.000-05:00

The Government Accountability Office (GAO) recently released a report identifying gaps in the Coast Guard’s security inspection policies and procedures at offshore facilities regulated under the Maritime Transportation Security Act (MTSA) as well as at deepwater ports.

For instance, the GAO found that though Coast Guard guidance indicates it should conduct security inspections at Outer Continental Shelf (OCS) facilities annually, the agency only conducted annual inspections at approximately one-third of these facilities from 2008 to 2010. Additionally, while the Coast Guard has taken actions to ensure the security of deepwater ports, including developing and reviewing security plans for these sites, Coast Guard guidance does not call for annual security inspections at these sites. The GAO learned that the Coast Guard had in fact only conducted one security inspection at a deepwater port from 2008 to 2010.

The GAO found that the Coast Guard’s database for storing inspection data has certain limitations that make it difficult to analyze whether required inspections were conducted. It recommends that the Coast Guard make adjustments to ensure that the information entered into its database is more useful and that the Coast Guard develops specific policies and/or guidance to ensure that annual security inspections are conducted at these locations.

U.S. Chemical Safety Board Releases Study on Oil and Gas Facility Explosions

2011-10-31T15:05:00.003-05:00

Last week, the U.S. Chemical Safety Board (CSB) published a new study regarding explosions at oil and gas production facilities across the country. The report identified 26 incidents since 1983 that killed 44 members of the public and injured 25 others under the age of 25. It is calling on the Environmental Protection Agency and state regulatory agencies to require improvements in the safety and security measures in place at these sites.

The CSB found that children and young adults in rural areas often visit these sites to socialize, and are unaware of the explosion hazards from storage tanks that contain flammable materials like crude oil and natural gas condensate. When an ignition source such as a match, lighter, or cigarette is introduced it can trigger an internal tank explosion under certain conditions, launching the tank into the air and killing or injuring people nearby.

The report recommends requiring inherently safer tank designs that would reduce the likelihood of an internal explosion when an ignition source is introduced nearby. It also recommends requiring several physical security improvements at these locations such as warning signs, fencing, locked gates, and locks on tank hatches.

Ammonium Nitrate Public Meetings Notice

2011-10-07T14:32:00.001-05:00

This week the Department of Homeland Security (DHS) announced a series of public meetings to consult with the public regarding its recently published Ammonium Nitrate Notice of Proposed Rulemaking (NPRM). DHS is seeking input on the issues raised in the NPRM and in this notice. Each meeting is open to the public and is expected to last approximately four hours.

A transcript of each of these public meetings will be provided in the electronic docket for the Ammonium Nitrate Security Program rulemaking (docket number DHS–2008–0076) available at http://www.regulations.gov.

4th Annual Homeland Security Regulatory Update for the Chemical & Petrochemical Industry

2011-09-20T12:49:00.001-05:00

The Roberts Law Group is pleased to announce its 4th Annual Homeland Security Regulatory Update for the Chemical & Petrochemical Industry. The event will be held on November 1, 2011 in Houston, Texas, and will address the latest security compliance issues and challenges. Speakers include regulatory experts, industry leaders, and government officials. Click Here for More Information or Click Here to Register.

MTSA Update

2011-09-02T11:30:00.001-05:00

In July 2011, the Transportation Security Administration began using a new version of the Transportation Worker Identification Credential (TWIC). Other than a change in version number and date on the back of the card, there are no visible differences between the new card and the previous version. However, facility and vessel security personnel should be aware of this change in order to assist in the recognition of authentic TWICs and in the detection of fraudulent TWICs.

The MTSA Policy Advisory Council (PAC), which issues period bulletins designed to assist MTSA-regulated facilities and vessels with the implementation of the MTSA program, published two new PAC decisions in July 2011: (1) PAC 02-11: Waiving Facilities that Transfer Certain Low Risk Commodities; and (2) PAC 05-03 Change 1: Applying MTSA Regulations to Facilities Having Periods of Variable Risk. Both are available on the Coast Guard’s Homeport website.

Protected Critical Infrastructure Information (PCII) Stakeholder Survey New ICR

2011-08-14T11:34:00.000-05:00

The Department of Homeland Security (DHS) is soliciting comments concerning the Protected Critical Infrastructure Information (PCII) Stakeholder Survey. The PCII Program was created by Congress in 2002 to encourage voluntary information sharing by owners and operators of critical infrastructure and protected systems. This survey is designed to gather information from PCII Officers that can be used to improve these relationships and to maximize the value that the PCII Program is offering to its federal, state, and local government users.

DHS previously published this Information Collection Request (ICR) in the Federal Register on March 31, 2011, for a 60-day public comment period. The purpose of this notice is to allow an additional 30 days for public comments. Comments will be accepted until September 14, 2011.

DHS Issues Ammonium Nitrate NPRM

2011-08-04T11:06:00.000-05:00

This week, the Department of Homeland Security (DHS) published a Notice of Proposed Rulemaking (NPRM) that would regulate the sale and transfer of ammonium nitrate.

Under the NPRM, certain ammonium nitrate sellers and prospective ammonium nitrate purchasers must apply for ammonium nitrate registration numbers from DHS in order to sell, transfer, and/or purchase the chemical. DHS will use the Terrorist Screening Database to vet each applicant, and must generally issue an ammonium nitrate registration number or deny the applicant’s registration within 72 hours of receipt. At the point of sale, ammonium nitrate sellers will be required to verify each potential ammonium nitrate purchaser’s identity and registration before completing the sale.

Ammonium nitrate facilities will be required to keep records of sales or transfers of ammonium nitrate for at least two years after each transaction. The NPRM defines an ammonium nitrate facility as “[a]ny person or entity that produces, sells, or otherwise transfers ownership of, or provides applications services for, ammonium nitrate.” The NPRM will also require ammonium nitrate sellers to report the theft or loss of ammonium nitrate to Federal authorities within one calendar day of discovery of the theft or loss.

In order to ensure compliance, DHS will conduct on-site and remote regulatory compliance inspections and audits of ammonium nitrate facilities’ records. DHS may assess a civil penalty of up to $50,000 per violation for non-compliance with the rule.

DHS Issues Report Warning of Insider Threats to Utilities

2011-07-21T13:20:00.000-05:00

This week, the U.S. Department of Homeland Security (DHS) issued a report warning major utilities such as chemical plants and oil refineries that “violent extremists” have obtained insider positions and might use those positions to conduct physical and cyber attacks on behalf of Al Qaeda.

Though DHS has said that it does not have any specific threats against U.S. utilities, the report indicates that violent extremists have already been able to obtain insider positions at chemical and oil refineries, and have tried to "solicit" employees in the utility sector. The report cites an attempted insider sabotage (not linked to Al Qaeda) at a water treatment plant in Arizona as evidence of American infrastructure vulnerabilities. DHS has said that it plans to work with its partners in the utility sector and at the state and local levels to protect utility facilities.

TSA Publishes Pipeline Security ICR Renewal Notice

2011-06-20T08:57:00.000-05:00

Last week the Transportation Security Administration (TSA) published a 60-day notice in the Federal Register (76 FR 35229-35230) of its intention to request OMB approval for the renewal and expansion of its Information Collection Request (ICR) for continued authority to collect “critical facility” information on the top 100 “most critical” pipelines.

Comments may be submitted by email to TSAPRA@dhs.gov by August 15, 2011.

2011-06-15T09:52:00.001-05:00

This week the Department of Homeland Security (DHS) published three notices in the Federal Register describing the requirements for the Chemical Facility Anti-Terrorism Standards (CFATS) Personnel Surety Program (PSP).

• Reply to Comments From the 30-day CFATS Personal Surety Program Information Collection Request (ICR) (76 FR 34720-34732; ICR Notice)

• Notice of the Establishment of a Privacy Act System of Records Supporting the CFATS Personal Surety Program (76 FR 34732-34736; Privacy Act Notice)

• Notice of Proposed Rule Making (NPRM) Proposing a Privacy Act Exemption for the CFATS Personal Surety Program System of Records (76 FR 34616-34618; Privacy Act NPRM)

These notices follow the 60-day ICR notice published on June 10th, 2009 (74 FR 27555) and the 30-day ICR notice published on April 13th, 2010 (75 FR 18850).

GAO Issues Report on the Transportation Worker Identification Credential (TWIC) Program

2011-05-11T11:32:00.001-05:00

This month, the Government Accountability Office (GAO) released a report identifying “[i]nternal control weaknesses governing the enrollment, background checking, and use of TWIC…” that it found may “…potentially limit the program’s ability to provide reasonable assurance that access to secure areas of Maritime Transportation Security Act (MTSA)-regulated facilities is restricted to qualified individuals.”

Specifically, the GAO indicated that internal controls in the enrollment and background checking processes are not designed to provide reasonable assurance that:

(1) Only qualified individuals can acquire TWICs;
(2) Adjudicators follow a process with clear criteria for applying discretionary authority when applicants are found to have extensive criminal convictions; or
(3) Once issued a TWIC, TWIC-holders have maintained their eligibility.

In making this finding, GAO investigators conducted covert tests at several selected ports and were successful in gaining access “…using counterfeit TWICs, authentic TWICs acquired through fraudulent means, and false business cases (i.e., reason for requesting access)."

The report suggests that the Department of Homeland Security conduct a control assessment of the TWIC program’s processes to address these existing weaknesses and better achieve the program’s objectives.

Subcommittee on Environment and the Economy Passes H.R. 908

2011-05-05T10:06:00.000-05:00

On May 4, 2011, the House Energy and Commerce Committee’s Subcommittee on Environment and the Economy passed H.R. 908, the Full Implementation of the Chemical Facility Anti-Terrorism Standards Act of 2011, by a voice vote.

The legislation would extend the Chemical Facility Anti-Terrorism Standards, in its current form, through September 30, 2017. The bill now moves to the full Committee for consideration.

DHS Introduces the National Terrorism Advisory System (NTAS)

2011-04-22T10:51:00.001-05:00

This week the Department of Homeland Security (DHS) introduced the National Terrorism Advisory System (NTAS), replacing the color-coded Homeland Security Advisory System. Among other things, NTAS simplifies the alert process and provides more precise threat and intelligence information.

There are two categories of NTAS Alerts: the Imminent Threat Alert “[w]arns of a credible, specific, and impending terrorist threat against the United States” while the Elevated Threat Alert “[w]arns of a credible terrorist threat against the United States.” Regardless of the type, DHS will communicate them broadly (including through social media such as Facebook and Twitter). NTAS Alerts automatically expire after a prescribed time (unless extended by DHS).

For additional information on NTAS, see DHS’s National Terrorism Advisory System Public Guide.

ISCD Updates CVI Webpage

2011-04-21T15:44:00.000-05:00

This week, the Infrastructure Security Compliance Division (ISCD) updated its Chemical-Terrorism Vulnerability Information (CVI) webpage to include a reference to the Executive Order signed by President Obama last year regarding Controlled Unclassified Information (CUI). The CUI Program will standardize the way the Executive Branch manages sensitive unclassified information that requires safeguarding or dissemination controls.

The updated webpage states that the National Archives and Records Administration (NARA), the agency designated to oversee implementation of CUI, has acknowledged the success of the CVI Program and has stated its intention to approve CVI as a category of CUI. However, DHS has indicated that the CUI markings should not be implemented until appropriate policies have been developed and training provided, and CVI Authorized Users should continue to use existing CVI markings until notified otherwise.

Coast Guard Releases and Seeks Comment on PAC 01-11, “Voluntary Use of TWIC Readers”

2011-03-16T10:09:00.000-05:00

On March 15, 2011, the Coast Guard published a notice in the Federal Register announcing the release of and seeking comment on Policy Advisory Council Decision 01-11, “Voluntary Use of TWIC Readers.” PAC 01-11 “…provides guidance for using the Transportation Security Identification Credential (TWIC) readers as part of a Vessel Security Plan or Facility Security Plan.” Interested parties may submit comments by May 16, 2011 at http://www.regulations.gov.

House CFATS Extension Bill Introduced

2011-03-04T16:00:00.001-06:00

Today, Peter King (R-NY), Chairman of the House Committee on Homeland Security and six other Members of the Committee joined Dan Lungren (R-CA), to introduce a bill that would extend the Department of Homeland Security’s (DHS’s) Chemical Facility Anti-Terrorism Standards (CFATS) program for seven years.

The House bill would extend CFATS in its current form, and unlike the Senate bill introduced earlier this week, would not include any additional provisions for voluntary public-private training and assistance programs.

Senate CFATS Extension Bill Introduced

2011-03-04T10:03:00.003-06:00

A bipartisan group of senators introduced new legislation this week that would extend the Department of Homeland Security’s (DHS’s) Chemical Facility Anti-Terrorism Standards (CFATS) program for three years. In addition to the three year extension, the bill includes provisions for:

The creation of a voluntary technical assistance program that would allow DHS to provide recommendations or assistance to covered facilities to aid in compliance with the CFATS program;
The development of voluntary exercise and training programs to improve collaboration with the private sector and State and local communities under the CFATS program; and
The creation of a chemical facility best practices clearinghouse and private sector advisory board at DHS to aid in the implementation of CFATS and the voluntary technical assistance program.

House Committee on Homeland Security Chemical Facility Security Hearing

2011-02-14T10:23:00.000-06:00

On February 11, 2011, the House Committee on Homeland Security held its first hearing on chemical security for 2011, entitled “Preventing Chemical Terrorism: Building A Foundation of Security At Our Nation’s Chemical Facilities.” Department of Homeland Security Under Secretary Rand Biers provided an update on the CFATS implementation process:

• Over 39,000 Top-Screens reviewed;
• Over 7,000 preliminary high-risk designations;
• Over 6,200 Security Vulnerability Assessments reviewed;
• Currently 4,755 covered facilities;
• Currently 4,094 final high-risk designations;
• Over 4,000 Site Security Plans (and Alternate Security Plans) submitted;
• 175 Pre-Authorization Inspections completed; and
• 65 Administrative Orders issued.

Other witnesses testifying at the hearing included:

• Mr. Timothy J. Scott, Chief Security Officer & Global Director of Emergency Services & Security, Dow Chemical Company;
• Dr. M. Sam Mannan, PhD, PE, CSP, Director, Mary Kay O’Connor Process Safety Center, Chemical Engineering Department, Texas A&M University; and
• Mr. George Hawkins, General Manager, D.C. Water

Please visit the House Committee on Homeland Security to view their written statements.

First Congressional Hearing on Chemical Security of 2011

2011-02-07T17:48:00.002-06:00

The House Committee on Homeland Security will be holding a hearing on chemical security on Friday, February 11, 2011. The hearing, titled “Preventing Chemical Terrorism: Building A Foundation of Security At Our Nation’s Chemical Facilities,” is the first congressional hearing on chemical security for the 112th Congress. For additional information on the hearing, please visit the House Committee on Homeland Security.

DHS Releases Revised SVA Instructions

2011-01-25T12:54:00.001-06:00

DHS recently released a revised Security Vulnerability Assessment (SVA) Instructions document entitled “CSAT Security Vulnerability Assessment Application Instructions.” The revised January 2011 SVA Instructions replaces the previous June 2008 SVA Instructions and offers additional guidance for completing the CSAT SVA. Note that this revision applies only to the SVA Instructions; the actual SVA Questions remain unchanged.

Congressional Research Service Issues CFATS Report

2011-01-13T16:17:00.001-06:00

In December 2010, the Congressional Research Service released Chemical Facility Security: Reauthorization, Policy Issues, and Options for Congress. The report provides an overview of the CFATS statute and regulation, recent legislative activity, and a discussion of various policy issues surrounding the CFATS program, including inherently safer technology, preemption, and regulatory harmonization.

TSA Releases Revised Pipeline Security Guidelines

2011-01-05T12:59:00.001-06:00

The Transportation Security Administration (TSA) has released revised Pipeline Security Guidelines. The Guidelines were developed through a public-private partnership that included among others, industry and government members of the Pipeline Sector and Government Coordinating Councils as well as industry association representatives.

The Guidelines also include a HSAS Threat Level Protective Measures Supplement that contains “…a series of progressive security measures to reduce vulnerabilities to pipeline systems and facilities during periods of heightened threat conditions….” Though the Guidelines and Supplement supersede the 2002 DOT Pipeline Security Guidelines, note that both documents are merely guidance and do not impose any mandatory requirements.

DOD and Army To Use TWIC for Authentication

2011-01-04T10:41:00.001-06:00

This week the Department of Defense (DOD) issued a brief notice announcing that as of October 1, 2011, it will require all commercial users of its transportation systems and applications to use a commercial PKI certificate or a Transportation Worker Identification Credential (TWIC) to access those systems and applications.

This initiative to enhance customer identification security and provide a stronger and more secure authentication process for accessing DOD information systems is the first instance in which TWICs will be utilized beyond their intended purpose—to gain unescorted access to Maritime Transportation Security Act (MTSA)-regulated facilities.

Congress Passes Food Safety Act

2010-12-23T10:21:00.000-06:00

This week Congress passed the Food Safety and Modernization Act, representing the first major overhaul of the U.S. food safety system in over 70 years. In addition to various safety considerations, the bill also directs the FDA to “…promulgate regulations to protect against the intentional adulteration of food….” (emphasis added). These regulations will, among other things, “…specify appropriate science-based mitigation strategies or measures to prepare and protect the food supply chain at specific vulnerable points….” The bill will not likely be signed into law until President Obama returns in early January 2011.

H.R. 3082 Extends CFATS Through March 4, 2011

2010-12-23T09:46:00.002-06:00

On Tuesday December 31, 2010, Congress passed H.R. 3082, amending the Continuing Resolution passed in September and thereby extending the authority for CFATS until March 4, 2011.

DHS Issues Helpful Tips for Completing a CFATS SSP

2010-12-14T10:09:00.001-06:00

On December 10, 2010, DHS issued a new guidance document entitled “Helpful Tips for Completing a Chemical Facility Anti-Terrorism Standards (CFATS) Site Security Plan.” The tips are based on DHS’s experience with reviewing submitted SSPs, conducting pre-authorization inspections, and the general feedback and questions it has received from the regulated community.

The document specifically addresses five areas where DHS believes additional clarity would benefit the development of a SSP:

1. Appropriate Level of Detail
2. Identifying Specific “Assets” and “Systems”
3. Security Measures Appropriate to Specified Risk Levels
4. Facility-Wide v. Asset-Specific Security Measures
5. Year-Round View

DHS notes that it recognizes the SSP process is a considerable undertaking that requires a coordinated effort to develop and accurately complete. It suggests that facilities allocate sufficient resources and time for their “SSP planners, preparers, and submitters to thoroughly evaluate the processes and operations at the facility so that they can adequately answer the SSP questions….”

H.J. Res. 101 Extends CFATS Through December 18, 2010

2010-12-06T15:56:00.000-06:00

On December 2, 2010, Congress passed H.J. Res. 101, which will provide discretionary funding for government operations at FY 2010 levels through December 18, 2010. As part of H.J. Res. 1010, the CFATS program is again temporarily extended in its current form until December 18, 2010. It is expected that Congress will pass another—likely longer (e.g., 1 year)—CFATS extension before the new December 18, 2010 expiration date.

Weekly CSAT-SSP Webinars

2010-11-29T11:28:00.001-06:00

DHS is now holding weekly CSAT-SSP Webinars for any CFATS facility with a pending SSP. The webinar consists of a detailed briefing on the SSP tool functions, questions, and considerations. Webinars are held each Wednesday from 11:00 AM to 1:00 PM EST and 2:00 PM to 4:00 PM EST. A facility may register up to five persons to participate in one or more of the weekly webinars.

To register for the webinar, you must submit an email to cfatsssp@absconsulting.com with the following information:

• Name;
• Position;
• Company Name;
• Facility Name;
• Facility Number;
• SSP Due Date;
• Number of Participants;
• Names of Participants; and
• Session Preference (morning or afternoon).

Reservations are made on a first-come first-serve basis. A facility representative may participate in more than one webinar, but in the event a webinar is fully booked, preference is given to facilities within 30 days of a SSP due date followed by those facility representatives that have not previously participated in a SSP Webinar.

Temporary CFATS Extension

2010-10-21T14:04:00.001-05:00

On September 29, 2010, Congress passed a stopgap spending bill (H.R. 3081) that ensures the federal government has funding to continue operating through 2010 until Congress returns from recess following the midterm elections. As part of the bill, the CFATS program was temporarily extended in its current form for two months (through December 3, 2010). Once Congress returns, it is expected that CFATS will again be extended for one year.

DHS Releases CSAT SSP Edit Process User Guide

2010-09-24T16:28:00.000-05:00

The Department of Homeland Security (DHS) has released the CSAT SSP Edit Process User Guide. The manual “provides instructions to facilities for editing and resubmitting their submitted Site Security Plan (SSP) through the Chemical Security Assessment Tool (CSAT)” to make either an administrative or technical edit.

Administrative edits relate to changes pertaining to the facility’s description, contact information, local police, fire and Emergency Management Team (EMT) jurisdiction information, and employee and workshift information. Technical edits involve changes to the facility’s operations, security measures, and other non-administrative components of the SSP. Note that once DHS has approved a facility’s SSP, the facility may only make technical edits to its SSP once every 90 days.

It is important to remember that a facility’s current SSP remains in effect until the submitted edits are reviewed and approved by DHS. Further, even after a facility receives a letter from DHS authorizing/approving the SSP edits, the facility's original SSP approval date and Top-Screen re-submission deadlines do not change.

The U.S. Government Accountability Office (GAO) Issues Pipeline Security Report

2010-09-02T14:26:00.000-05:00

In August 2010, the U.S. Government Accountability Office (GAO) issued a report reviewing the Transportation Security Administration’s (TSA’s) current efforts to address pipeline security. The GAO specifically reviewed the TSA Pipeline Security Division’s (PSD’s) risk assessment process and performance measures after observing 14 PSD inspections scheduled during the review period.

The report noted that the PSD pipeline risk assessment model could be improved by adding certain non-economic impacts such as public health and safety to its consequence component. Further, the GAO indicated that although PSD has taken steps to assess its progress in strengthening pipeline security, its ability to measure improvements is still limited as PSD is not utilizing performance measures or linking them to objectives. The GAO report recommended that TSA “establish time frames for improving risk model data, document its method for scheduling reviews, develop a plan for transmitting recommendations to operators, follow up on its recommendations, include performance measures linked to objectives in its pipeline strategy, and develop more outcome measures.”

ISCD Director Speaks on Preliminary Inspections

2010-08-20T15:43:00.002-05:00

The acting director of the Department of Homeland Security’s (DHS’s) Infrastructure Security Compliance Division (ISCD) Dennis Deziel offered insight into DHS’s direction on preliminary inspections while speaking at the National Association of Chemical Distributors (NACD) Operations Seminar and Trade Show in Austin, Texas this week.

Deziel stated that officials plan to increase preliminary inspections of chemical facilities regulated by the Chemical Facility Anti-Terrorism Standards (CFATS) to 30-40 facilities per month beginning in August. He stated that many of the Site Security Plans (SSPs) submitted thus far need more detail, and indicated that the Chemical Security Assessment Tool used to submit SSPs “is not perfect,” noting that “there hasn’t been a lot of guidance given to facilities.”

Speaking directly on the preliminary inspections Deziel offered the following:

“It’s almost like a real inspection. We’re there for up to a week. We walk through their draft site-security plan, get a sense of what is at the site, what they said in their plan, and making sure they add the detail they need to ... We’ve found [the preliminary inspections] are a pretty critical piece. People are now starting to understand exactly what the expectations are, which helps us get quality site-security plans.”

DHS Sends Agriculture Survey

2010-08-03T13:49:00.002-05:00

DHS recently sent an Agriculture Survey to nearly 1,300 covered CFATS facilities that submitted Top-Screens indicating they possessed certain COIs used in agriculture activities. DHS had indefinitely extended the Top-Screen submission due date in December 2007 for farmers and other agricultural facilities that use COI for agricultural production purposes in order to gather more information regarding agricultural operations to determine whether modification of the Top-Screen was necessary for such facilities. This Agriculture Survey represents DHS’s modification of the Top-Screen and its first step in re-evaluating agricultural facilities that possess and use Appendix A COIs.

The Agriculture Survey seeks information about COI-containing products that meet or exceed the lowest minimum concentration level established for that COI in Appendix A – whether or not the amount of the COI possessed by the facility exceeds the applicable Appendix A Screening Threshold Quantity. Therefore, a facility may need to provide information about COI-containing products that were not required to be reported on the facility’s Top-Screen submission. Those facilities notified in writing by DHS are required to complete and submit the Agriculture Survey by Monday, September 20, 2010.

Senate Committee Approves Amended H.R. 2868

2010-07-30T12:48:00.001-05:00

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

2010-07-19T09:24:00.000-05:00

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

2010-07-16T17:36:00.000-05:00

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)

2010-07-14T09:08:00.004-05:00

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

2010-07-12T14:46:00.007-05:00

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.

2010 Chemical Sector Security Summit

2010-07-07T12:06:00.001-05:00

The 2010 Chemical Sector Security Summit began this week in Baltimore, Maryland. The two-day event, sponsored by the Department of Homeland Security (DHS) and the Chemical Sector Coordinating Council (CSCC), is designed for chemical industry, security, and health/safety/environmental professionals, and provides a forum for attendees to exchange information and network with government agencies, industry colleagues, and security professionals. The event will also give participants the opportunity to meet and interact with DHS officials, ask specific questions about the Chemical Facility Anti-Terrorism Standards (CFATS), and better understand the role of different agencies and departments involved in chemical security.

Chemical Sector Security Summit topics will include:

(1) Threats to the Homeland and Chemical Sector;
(2) Chemical Facility Anti-Terrorism Standards (CFATS);
(3) Cyber Security;
(4) Transportation Risks;
(6) Personnel Surety;
(7) Inherently Safer Technology (IST); and
(8) Best Practices from CFATS Inspections.

Senate Homeland Security Committee Approves Cyberspace Act

2010-07-06T11:56:00.000-05:00

The Senate Homeland Security Committee recently approved the Protecting Cyberspace as a National Asset Act of 2010 (S.3480). If enacted, the legislation would create an Office of Cyber Policy in the White House that would lead all federal cyberspace efforts and devise national cyberspace strategy. It would also establish a National Center for Cybersecurity and Communications within the Department of Homeland Security that would enforce cybersecurity policies throughout the government and the private sector. The bill would also establish a public/private partnership to set national cyber security priorities and improve national cyber security defenses.

The legislation, aimed at protecting America’s critical cyber infrastructure, has the support of the American Chemistry Council (ACC). ACC’s senior director of security stated, “The bill . . . will go a long way toward building upon the rigorous security regulations already in place for our industry, while providing a much needed focus on cyber-security,” adding that the legislation “will help us protect our facilities, our employees, the communities where we operate, and the vital products we supply to the nation every day.”

Roberts Law Group Hosts Third Annual Homeland Security Regulatory Briefing

2010-05-04T12:18:00.002-05:00

Roberts Law Group PLLC will host its Third Annual Homeland Security Regulatory Briefing on May 26, 2010, at the Downtown Four Seasons Hotel in Houston, Texas. The one-day conference will help members of industry and other interested parties understand the current impact of security regulations (to include freight rail security, CFATS, MTSA, and HM-232) and will offer practical advice for compliance. Agenda items include regulatory and legislative updates, as well as three separate panels of speakers who will discuss current industry compliance and implementation issues relating to security regulations.

Texas lawyers can earn six (6) CLE credit hours for attending. The registration fee is $95, and includes a generous lunch buffet sponsored by ADT Advanced Integration. Click here to register.

Chemical Safety and Hazard Investigation Board Planning IST Investigation

2010-04-26T10:52:00.001-05:00

The U.S. Chemical Safety and Hazard Investigation Board (CSB) announced Friday in the Federal Register that they have drafted a task assignment for the National Academy of Sciences (NAS), titled "Study on Inherently Safer Chemical Processes: The Use of Methyl Isocyanate at Bayer CropScience." The study will be held pursuant to the Department of the Interior, Environment, and Related Agencies Appropriations Act of 2010 [Pub. L. 111-88], directing the CSB to conduct "a study by the [NAS] to examine the use and storage of methyl isocyanate including the feasibility of implementing alternative chemicals or processes and an examination of the cost of alternatives at the Bayer CropScience facility in Institute, West Virginia." Friday's Federal Register notice outlines the scope of the study and establishes a 15-day public comment period.

Specifically, the CSB is interested in public comments regarding the following four topics:

Does the proposed Task Statement include the appropriate topics for consideration by the NAS?
If funds are available, should the CSB initiate a second, related study to consider the feasibility, costs, and benefits of inherently safer alternatives to other chemicals?
What kinds of backgrounds and expertise should be represented on the NAS panel?
Is the proposed timetable appropriate?

Comments are due no later than May 10, 2010, and should be submitted by email to NASComments@CSB.gov, referencing Docket Number CSB-10-01 in the subject line.

Homeland Security Advisory Council Announces May Teleconference

2010-04-19T12:08:00.002-05:00

The Department of Homeland Security (DHS) announced Monday in the Federal Register that its Homeland Security Advisory Council (HSAC) will hold a teleconference meeting on May 13, 2010, in order to receive the initial report of the Counter Violent Extremism Working Group (CVEW). CVEW was formed last January in order to coordinate counter-violent extremism efforts across DHS.

All members of the public are welcome to join by dialing into the teleconference, which will take place from 4PM to 5PM EST. Anyone wishing to participate in the teleconference must provide full legal name, e-mail address and phone number no later than 5 p.m. EST on May 11, 2010, to a staff member of the HSAC via e-mail at HSAC@dhs.gov or via phone at (202) 447-3135. Any written comments submitted by the public before the meeting must be received electronically by May 7, 2010 and should reference Docket Number DHS-2010-0030.

DHS Publishes CFATS Personnel Surety Request for Comments in Federal Register

2010-04-13T14:59:00.003-05:00

The Department of Homeland Security (DHS) on Tuesday published in the Federal Register a 30-day notice and request for comments (representing a new information collection request (ICR)) relating personnel surety as outlined under the Chemical Facility Anti-Terrorism Standards (CFATS). Tuesday's 30-day ICR follows a separate 60-day public notice for comments originally published June 10, 2009, to which seventeen comments were submitted last year.

Specifically, DHS is interested in comments that:

Respond to DHS’s interpretation of the population affected by RBPS–12 background checks, as outlined in 6 CFR 27.230(a)(12);
Respond to fact that DHS or a Federal law enforcement agency may, if appropriate, contact the high-risk chemical facility as a part of a law enforcement investigation into terrorist ties of facility personnel;
Respond to DHS's intention to collect information that identifies the high-risk chemical facilities, restricted areas and critical assets to which each affected individual has access; and
Respond to DHS on its intention to seek an exception to the notice requirement under 5 CFR 1320.8(b)(3).

Comments to the latest ICR are due no later than May 13, 2010, and should be submitted online, through the Federal eRulemaking Portal, referencing Docket Number DHS–2009–0026.

Federal Railroad Administration Publishes Information Request Collection Notice in Federal Register

2010-04-12T14:42:00.004-05:00

The Federal Railroad Administration (FRA) on Friday published in the Federal Register a 60-day notice of their intent to file an Information Collection Request (ICR) to the Office of Management and Budget (OMB), marking an initial step towards the establishment of an online reporting system that would allow the public to report "potential violations of Federal railroad safety and hazardous materials transportation laws.” FRA seeks OMB approval for the specific information being proposed to be collected on the Alleged Violation Reporting Form (Form FRA F 6180.151), which will be an online reporting tool. This public safety-reporting tool implementation is required by §307(b) of the Rail Safety Improvement Act of 2008.

The 60-day comment period will end on June 7, 2010. Comments may be transmitted via fax to (202) 493-6216 or (202) 493-6497, or via e-mail to robert.brogan@dot.gov or kimberly.toone@dot.gov. Submissions must include a reference to “OMB control number 2130-New”.

DHS and CSCC to Host Chemical Security Seminar in July

2010-04-09T14:20:00.000-05:00

The Department of Homeland Security's Office of Infrastructure Protection and the Chemical Sector Coordinating Council (CSCC) announced earlier this year that they will co-host the 2010 Chemical Sector Security Summit July 7-8, in Baltimore, Maryland. Attendance is free of charge.

The annual Chemical Sector Security Summit is an opportunity for security professionals with a need to know the Chemical Facility Anti-Terrorism Standards (CFATS) or other chemical security- or transportation security-related issues to exchange information with other members of industry. Attendees will also have an opportunity to learn the latest status of CFATS and pending chemical security legislation, as well as to gain insight into the role of various government agencies and departments with a hand in chemical and transportation security. Of note, the Summit will include some discussion of lessons-learned during the very first CFATS inspections that have occurred early this year. A preliminary agenda can be found here. Interested parties can register here.

PHMSA Proposes Changes in Combustible Liquids Shipping Regulations

2010-04-07T00:52:00.003-05:00

The Pipeline and Hazardous Materials Safety Administration (PHMSA) on Monday published an Advance Notice of Proposed Rulemaking (ANPRM) in the Federal Register that would provide changes to the hazardous materials regulations (HMR) [at 49 CFR Parts 100-185]. The ANPRM, published at 75 Fed. Reg. 17111-19, would harmonize the regulations for shipments of combustible liquids with international hazmat shipping regulations. PHMSA proposes the change in the HMR based on three petitions submitted by the International Vessel Operators Hazardous Materials Association, the Dangerous Goods Advisory Council, and U.S. Custom Harvesters, Inc.

Under the ANPRM, PHMSA seeks comment from industry on the potential harmonization of HMR definitions and requirements for combustible liquids with international standards, as well as the modification of domestic marking and placarding of combustible liquids in order to eliminate confusion upon shipment overseas and the possible expansion of current HMR exceptions for combustible liquids to also accommodate unique operational requirements.

The public ANPRM comment period ends July 6, 2010. PHMSA is accepting electronic comment submissions via the Federal eRulemaking Portal using docket number PHMSA-2009-0241 (HM-242). Comments may also be submitted via fax, (202) 493-2251, or via mail, to:Docket Management System; U.S. Department of Transportation, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001.

DHS Updates Counterterrorism Laws & Regulations Webpage

2010-04-02T15:54:00.000-05:00

Late last month, the Department of Homeland Security (DHS) updated its Laws & Regulations webpage in the Counterterrorism section of its website. Under Chemical Security, DHS updated the Paperwork Reduction Act Notices for Comment subsection by adding three notes regarding Office of Management and Budget (OMB) approval of three Information Collection Requests (ICRs): OMB Collection #'s 1670-0007, 1670-0014, and 1670-0015. All three of these ICRs will be good until March 19, 2013.

OMB Collection #1670-0007

OMB 1670-0007 was an update of a previously-approved ICR dealing with the basic forms included in the Chemical Security Assessment Tool (CSAT). It includes the forms for: CFATS Helpdesk, Chemical-terrorism Vulnerability Information (CVI) Authorization, CSAT User Registration, CSAT Top-Screen, CSAT Security Vulnerability Assessment (SVA), CSAT Alternative Security Program (ASP) submitted in lieu of the CSAT SVA, CSAT Site Security Plan (SSP), and ASP submitted in lieu of the CSAT SSP.

This update included a significant decrease in the number of expected annual responses expected for these forms, based on the fact that most facilities who have already submitted the initial CFATS Top-Screen will not submit future additional Top-Screens or SVAs, unless there is a significant modification in the amount or type of COI stored on site.

OMB Collection #1670-0014

OMB 1670-0014 was a new request covering forms used in: Request for Redetermination, Request for an Extension, Notification of New Top-Screen, and Request for a Technical Consultation. These forms were not included in the original CSAT ICR and are an outgrowth of the original CFATS documents.

OMB Collection #1670-0015

OMB 1670-0015 was a new request covering forms used in the administration of CVI. These forms include: the Chemical-terrorism Vulnerability Information Tracking Log, Notification of CVI Access Exigent Circumstances, Report of Potential Release of CVI, Request for Determination of CVI, CVI Authority, and Determination of a Public Official’s Need to Know. With the exception of the CVI Authority, these forms were not included in the original CSAT ICR.

FEMA Publishes Information Collection Request Notice in Federal Register

2010-03-30T09:52:00.002-05:00

The Federal Emergency Management Administration (FEMA) on Monday published in the Federal Register a new 30-day Information Collection Request (ICR) notice supporting the FEMA Port Security Grant Program (PSGP). The original 60-day notice for this ICR was published in the Federal Register on November 17, 2009. FEMA has submitted this information collection request to the Office of Management and Budget (OMB) for review and clearance.

FEMA's PSGP was created to create a collaborative, risk-based counter-terrorism initiative by protecting critical port infrastructure from terrorist acts, especially those where explosives or non-conventional threats could cause a major disruption to U.S. commerce. The PSGP provides grant funding to U.S. port areas to assist in U.S. port protection, by enhancing maritime domain awareness and enhancing the ability to prevent, detect, respond to, and recover from a variety of potential terrorist attacks. FEMA “uses the [ICR] to evaluate applicants' familiarity with the national preparedness architecture and identify how elements of this architecture have been incorporated into regional/state/local planning, operations, and investments.”

Monday's request varies slightly from the original November ICR. FEMA Form 089-21, Ferry Investment Justification, has been removed. Additionally, FEMA added “Business or other for-profit” to the Affected Public portion of the request, which resulted in an increase in the Estimated Number of Respondents and in the Estimated Total Annual Burden Hours.

The new comment period ends April 28, 2010. Public comments should be addressed to the Desk Officer for the Department of Homeland Security, Federal Emergency Management Agency, and sent via email to oira.submission@omb.eop.gov or faxed to (202) 395-5806.

DHS's National Infrastructure Advisory Council to Hold Meeting

2010-03-26T06:43:00.003-05:00

The Department of Homeland Security (DHS) announced Tuesday that its National Infrastructure Advisory Council (NIAC) will hold a meeting on Tuesday, January 12, 2010, from 1:30pm to 4:30pm. NIAC, composed of members from private industry, academia, and state and local government that are appointed by the U.S. President, submits reports and issues advice to the President regarding the eighteen critical infrastructure and key resources (CIKR) and their information systems. The published agenda for the April meeting is to discuss reports from two of the NIAC's working groups: "A Framework for Establishing Critical Infrastructure Resilience Goals," and "Optimization of Resources for Mitigating Infrastructure Disruption." The linked presentations are from the January 12, 2010 NIAC meeting.

Participation in the meeting is limited to committee members and other DHS officials. However, the meeting is open to public comment. Members of the public may submit written comments by December 30, 2010, either online through the Federal eRulemaking Portal, or via mail, to: Nancy Wong, Department of Homeland Security, National Protection and Programs Directorate, 245 Murray Lane, SW., Mail Stop 0607, Arlington, VA 20598-0607. Comments should reference Docket No. DHS-2010-0025.

PHMSA Publishes HMR Security Plan Final Rule

2010-03-10T15:48:00.004-06:00

The Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA) on Tuesday published in the Federal Register a Final Rule regarding security plans for shipments of hazardous materials (hazmats) under the hazardous materials regulations (HMR) [at 49 CFR Parts 100-185]. The Rule, published at 75 Fed. Reg. 10974-89, would amend 49 CFR Part 172 to clarify that shippers and carriers of hazmats covered by HMR should adopt security plans required under the rule only after considering specific risks and vulnerabilities, as opposed to using generic security plans. The Final Rule authorizes voluntary compliance as of April 8, 2010. In order to allow companies to make required changes in their current security plans, the effective date for the Rule is October 1, 2010.

Tuesday’s Final Rule is a culmination of a regulatory process that began on September 21, 2006, with publication of an Advanced Notice of Proposed Rulemaking (ANPRM) [at 73 Fed. Reg. 55156] responding to a number of industry petitions to reduce the number of hazmats covered by HMR. PHMSA, in conjunction with the Transportation Security Administration (TSA), conducted a review of the potential security threats facing industry in charge of hazmat transportation, concluding that the list of materials posing a significant threat of a terrorist attack while enroute could be amended. This allowed an elimination of some classes of hazmats entirely from the security plan requirement. It also allowed a reduction in the triggering quantity initially provided for other classes of hazmats, reducing coverage by the regulation.

On September 9, 2008, PHMSA published a notice of proposed rulemaking (NPRM) for this rule [at 73 Fed. Reg. 52558], indicating that it intended to clarify the requirements for HMR security plans to address security issues along specific routes or specific locations. A number of the comments received following the NPRM indicated that there was some confusion about the impact of this wording. Accordingly, in the Final Rule published Tuesday, PHMSA revised the text of 49 CFR §172.802(a) to “more clearly state that shippers and carriers must consider site-specific risks and vulnerabilities at facilities subject to the security planning requirement” instead of simply using generic security plans. Most of the other requirements outlined in the NPRM have already been adopted as proposed.

Senate Holds Chemical Facility Security Hearing

2010-03-03T11:22:00.001-06:00

The Senate Committee on Homeland Security & Governmental Affairs held a hearing Wednesday morning discussing chemical security issues and concerns, namely surrounding the Chemical Facility Anti-Terrorism Standards (CFATS) and its current regulatory and legislative status. The hearing, titled "Chemical Security: Assessing Progress and Charting a Path Forward," consisted of testimony elicited by the Committee from The Honorable Rand Beers, Under Secretary for the Department of Homeland Security's (DHS's) National Protection and Programs Directorate; Sue Armstrong, Acting Deputy Assistant Secretary for DHS's Office of Infrastructure Protection; and The Honorable Peter S. Silva, Assistant Administrator for Water at the Environmental Protection Agency (EPA); as well as representatives from the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), the American Chemistry Council; and the Society of Chemical Manufacturers and Affiliates (SOCMA).

Much of the hearing focused around the issue of inherently safer technology (IST), as proposed in legislation passed by the House last November (H.R. 2868) that would provide permanent congressional authority for chemical facility security regulation. DHS continues to support IST provisions in legislation that would reauthorize CFATS, while recognizing that much debate continues to surround implementation of IST provisions. The Hon. Rand Beers reiterated the previous stance taken by DHS on this matter, explaining that DHS would take deliberate measures to work with facilities to assess the feasibility of implementing IST, taking into account critical chemical facility changes as well as industry costs. According to testimony elicited Wednesday, IST would only be implemented after listening to all stakeholder interests - assuming the provisions pass full Congressional debate.

According to testimony by both The Hon. Rand Beers and Sue Armstrong, two Tier 1 facilities in the New York/New Jersey area have been selected for DHS inspection pilot programs. DHS plans to inspect ten more Tier 1 facilities this month, and to conclude with the inspection of all 235 Tier 1 facilities by the end of the calendar year. DHS inspection techniques and expectations continue to evolve and change during these initial pilot inspections, according to both Beers and Armstrong.

The hearing comes one month after Senators Collins, Pryor, Landrieu, and Voinovich introduced S. 2996, the Continuing Chemical Facilities Antiterrorism Security Act of 2010, which would authorize an extension of CFATS until October 4, 2015. The Senate bill differs in several ways from the House bill passed in May, notably with its absence of IST provisions detailed in the House bill. During the hearing, DHS reiterated that it supports permanent authorization of chemical facility security legislation, and noted that it plans to provide Congress with draft legislation later this fiscal year. Wednesday's hearing is the first held by the Senate regarding chemical facility security since July 2005, when it held a similar 2-panel hearing.

U.S. Senate to Hold Chemical Security Hearing

2010-02-26T12:11:00.003-06:00

The Senate Committee on Homeland Security & Governmental Affairs will hold a hearing at 9:30am ET on March 3, 2010, to discuss chemical security issues and concerns. The hearing, titled "Chemical Security: Assessing Progress and Charting a Path Forward," will consist of testimony from members of two separate panels. Discussion during the first panel will include testimony from The Honorable Rand Beers, Under Secretary for the Department of Homeland Security's (DHS's) National Protection and Programs Directorate; Sue Armstrong, Acting Deputy Assistant Secretary for DHS's Office of Infrastructure Protection; and The Honorable Peter S. Silva, Assistant Administrator for Water at the Environmental Protection Agency (EPA).

The second panel will consist of a representative from the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW); a representative of the American Chemistry Council; and one from the Society of Chemical Manufacturers and Affiliates (SOCMA). The Senate has not held a hearing on chemical security since July 2005, when it held a 2-panel hearing regarding security at chemical facilities.

The hearing will come one month after Senators Collins, Pryor, Landrieu, and Voinovich introduced S. 2996, the Continuing Chemical Facilities Antiterrorism Security Act of 2010, which would authorize an extension for the existing Chemical Facility Anti-Terrorism Standards (CFATS) until October 4, 2015. In November, the House of Representatives passed a similar bill, H.R. 2868, which includes provisions collectively for chemical facility security, drinking water facility security, and security at waste water treatment works. S. 2996 and H.R. 2868 would have to be reconciled before either version could become law.

FEMA Publishes Information Collection Request Notices in Federal Register

2010-02-26T10:29:00.006-06:00

The Federal Emergency Management Administration (FEMA) on Wednesday posted two new Information Collection Request (ICR) notices in the Federal Register. The first ICR pertains to the Freight Rail Security Grant Program (FRSGP); the second pertains to the Trucking Security Grant Program (TSP). Both are 30-day notices and requests for comments. The original 60-day notices for these ICRs were posted on September 21st, 2009 under slightly different names.

The Freight Rail Security Grant Program ICR addresses the requirement for the submission of Investment Justification information (FEMA Form 089-6) with the grant application. This information is required to demonstrate “how proposed projects address gaps and deficiencies in current programs and capabilities and the ability to provide enhancements consistent with the purpose of the program and guidance provided by FEMA." 75 Fed. Reg. 8,389. The data is used in the application evaluation review as part of the ranking process. FEMA estimates that there will be 400 applications requiring this information submission each year. They estimate that this requirement will place an average burden of 24 hours on each applicant.

The Trucking Security Grant Program ICR applies to the submission of Investment Justification Template information (FEMA Form 089-7) as part of the grant application process. This information is used to “evaluate applicants' familiarity with national preparedness architecture and identify how elements of this architecture have been incorporated into regional/State/local planning, operations, and investments." 75 Fed. Reg. 8,385. FEMA estimates that there will be 25 applications requiring this information submission each year. They estimate that this requirement will place an average burden of 5 hours on each applicant.

The comment period on both ICRs ends on March 26th, 2010. Comments should be addressed to the Desk Officer for the Department of Homeland Security, Federal Emergency Management Agency, and sent via electronic mail to oira.submission@omb.eop.gov or faxed to (202) 395-5806.

DHS Hosts CFATS Update Webinar

2010-02-23T20:48:00.003-06:00

The Department of Homeland Security's (DHS's) Director of the Infrastructure Security Compliance Division (ISCD) Sue Armstrong on Monday hosted an hour-long public webinar providing an agency update on the Chemical Facility Anti-Terrorism Standards (CFATS). The webinar began with a brief summary of CFATS, the purpose behind Congressional authority for regulation of chemical facility security, and the current status of CFATS compliance nationwide.

According to Armstrong, more than 7,000 facilities were preliminarily tiered under CFATS and were told to submit a Security Vulnerability Assessment (SVA). DHS then received 6,300 SVAs; some facilities modified their Top-Screens and were tiered out of the regulation. DHS continues to review the remaining 2,516 SVAs and to direct some facilities to submit a Site Security Plan (SSP). The agency expects to continue issuing final tiering letters through the summer, with the goal of issuing approximately 500 letters per month.

Aside from the general status report, Armstrong mentioned several specific issues of interest. First, she noted that when reviewing SSPs, DHS is taking into significant consideration the extent to which a facility provides for facility cyber and process control using remote monitoring. Armstrong also noted the emphasis DHS is putting on SSP review of facility outreach programs to local and state first responders. According to Armstrong, SSP review will focus on whether a facility has adopted a cooperative plan or program with local emergency responders.

Regarding facility inspections, Armstrong said that to date, DHS has initiated inspections at two Tier 1 facilities, which DHS will leverage to assess its own assumptions and expectations regarding CFATS facility inspections. DHS continues to amend its own inspection process, but facilities can expect an inspection to take around one week, with two on-the-ground DHS inspectors onsite. Beyond the initial inspection, DHS expects Tier 1 facilities to be inspected annually, Tier 2 facilities to be inspected biannually, and Tier 3 and Tier 4 facilities to be inspected as necessary, in a "prioritized" manner. To date, DHS has hired 142 ISCD personnel and continues to hire and train chemical inspectors. Eventually, DHS expects to open at least ten regional inspection offices.

DHS also emphasized its goal of closing the exemption gap currently provided to facilities regulated by the Maritime Transportation Security Act (MTSA) as well as to water and wastewater treatment facilities. According to Armstrong, DHS is seeking to establish a Working Group with the U.S. Coast Guard, in order to facilitate CFATS harmonization with MTSA regulations.

Lastly, Armstrong summarized the recent discussion around the applicability of CFATS to gasoline terminals, noting the Top-Screen submissions of several facilities with gasoline and the subsequent filing of a petition regarding gasoline terminal coverage by the International Liquid Terminals Association (ILTA) in May 2009. Armstrong mentioned DHS's publication of a 60-day Request for Comments last month regarding CFATS applicability to gasoline, and reiterated the request for comments by March 16.

2011 Budget Released; Includes One-Year CFATS Extension

2010-02-08T17:07:00.001-06:00

Last week, the White House released the 2011 Budget which, among other things, authorizes a second one-year extension of the Chemical Facility Anti-Terrorism Standards (CFATS), originally authorized in Section 550 of the Department of Homeland Security Appropriations Act of 2007 [Pub. L. 109-295]. CFATS was set to sunset in October 2009, but received an initial one-year extension late last year in the 2010 Department of Homeland Security Appropriations Act [Pub. L. 111-83]. The 2011 Budget Justifications for the Department of Homeland Security state:

Section 550(b) of the Department of Homeland Security Appropriations Act, 2007 (Public Law 109–295; 6 U.S.C. 121 note), as amended by section 550 of the Department of Homeland Security Appropriations Act, 2010 (Public Law 111–83), is further amended by striking ["three years after the date of enactment of this Act'' and inserting] "on October 4, 2010'' and inserting "on October 4, 2011".

Both the Senate and the House of Representatives have made recent movement towards passing long-term chemical facility security legislation. The House passed H.R. 2868 in November, which contains provisions for chemical facility security, drinking water facility security, and security at waste water treatment works. Last week, members of the Senate introduced a bill that would extend the 2007 Appropriations Act's authorization of CFATS until October 4, 2015. While the 2011 Budget CFATS extension clause would not preclude Congressional action towards permanent legislation, it would allow current CFATS regulatory movement by DHS to continue until the end of 2011.

Senators Introduce CFATS Extension Bill

2010-02-05T23:44:00.005-06:00

U.S. Senator Susan Collins (R-ME) on Thursday introduced legislation that would, among other things, extend the current authorization for the Chemical Facility Anti-Terrorism Standards (CFATS) until October 4, 2015. According to Collins and the bill's three cosponsors (Senators Pryor (D-AR), Landrieu (D-LA), and Voinovich (R-OH), S. 2996, the Continuing Chemical Facilities Antiterrorism Security Act of 2010, the purpose of the bill is to provide "the Department of Homeland Security (DHS) with sufficient time to fully implement the Chemical Facilities Anti-Terrorism Standards program."

In addition to extending CFATS, the bill proposes two additional programs that would enhance chemical facility security: the Chemical Security Training Program and the Chemical Security Exercise Program. Both would be administered by the Federal Emergency Management Agency (FEMA). The training program would, among other things, include training and education for personnel that live and work in neighborhoods surrounding high-risk chemical facilities. The exercise program would establish a method to provide for testing and evaluating the capabilities of stakeholders to "prevent, prepare for, mitigate against, respond to, and recover from acts of terrorism."

In November, the House of Representatives passed a similar bill. H.R. 2868 includes provisions for chemical facility security, drinking water facility security, and security at waste water treatment works. The bill provides for comprehensive chemical security provisions at all three types of facilities while also addressing the unique security requirements for the water facilities. S. 2996 and H.R. 2868 would have to be reconciled before either version could become law.

PHMSA Proposes Increase in Hazmat Registration Fee

2010-02-03T00:23:00.002-06:00

The Pipeline and Hazardous Materials Safety Administration (PHMSA) on Tuesday published a Notice of Proposed Rulemaking (NPRM) in the Federal Register that would significantly increase the registration fees for hazardous materials (hazmat) shippers and transporters. The NPRM, published at 75 Fed. Reg. 5258-61, would increase fees pursuant to the Hazardous Materials Emergency Preparedness grants program.

Under the proposed rule, PHMSA would keep the current registration fee of $250 per year for small businesses and non-profit organizations. The increase would apply to all other registrants, increasing the current fee of $975 to $2,975. As proposed, these fee increases would become effective for the 2010-11 registration year. For those organizations that have pre-paid the existing fee as part of a multi-year registration will be required to make up the difference between the two rates to maintain an effective registration for that period.

The public comment period for the NPRM ends on March 4th, 2010. PHMSA is accepting electronic comment submissions via the Federal eRulemaking Portal using docket number PHMSA-2009-0201 (HM-208H).

Indiana House Passes Workplace Firearm Possession Bill Exempting CFATS and MTSA Facilities

2010-01-28T16:58:00.009-06:00

The Indiana House of Representatives on Tuesday passed a bill that would make it illegal to restrict or prohibit the possession, transportation, or storage of firearms (including in locked employee vehicles) at the workplace. H.R. 1065, which was introduced and referred to the House Committee on Natural Resources earlier this month, would amend Title 10, Article 14, Chapter 3 of the Indiana Code to disallow the restriction of firearm storage in employee vehicles parked on company property. Senate Bill 25, providing for similar measures, was passed by the state Senate on Monday; the two will have to be reconciled before becoming law.

As passed by the House, however, several exemptions apply. Most notably, the law would not apply to facilities regulated by the Chemical Facility Anti-Terrorism Standards (CFATS) or the Maritime Transportation Security Act (MTSA). That is, it would not authorize the possession, transportation, storage, or use of firearms at CFATS- or MTSA-regulated facilities, even in locked employee vehicles. The Senate version lacks this explicit exemption.

DHS Secretary Napolitano Attends Meeting to Discuss International Aviation Security Standards

2010-01-22T15:05:00.006-06:00

Department of Homeland Security (DHS) Secretary Janet Napolitano this week met with members of the International Air Transport Association (IATA) as well as leaders from twenty international airlines to discuss improvements in international aviation security. Secretary Napolitano outlined four general areas in which international public-private collaboration would help improve efforts to secure aviation systems: improving information collection and analysis; increasing information sharing and collaboration in passenger vetting; enhancing international aviation security standards; and deploying new airport screening technologies.

This week's meetings are the first in a series of planned global meetings to discuss a collaborative effort to implement new international aviation security standards and procedures. While the U.S. Transportation Security Administration (TSA) must, by law, screen passengers and baggage entering air vessels originating from within the United States, it does not screen passengers or baggage originating abroad. All last point of departure flights to the United States must meet minimum standards set by the International Civil Aviation Organization (ICAO), as well as recently enhanced security standards set by TSA. The recent global meetings are an effort to streamline international aviation security standards for all international and domestic flights.

Senator Rockefeller to Markup Cybersecurity Bill

2010-01-19T11:05:00.008-06:00

Sen. John D. Rockefeller (D-WV) announced last week that he plans on marking up comprehensive cybersecurity legislation introduced last April and redrafted over the summer in order to revive legislation aimed at securing the nation's cyber networks. Rockefeller, who serves as Chairman of the Senate Committee on Commerce, Science, and Transportation, originally introduced S.773 into the Senate last year, in response to post-9/11 complaints that both the private and public sectors were inadequately securing their cyber infrastructures.

If passed, the bill would create a National Cybersecurity Adviser within the Executive Office who would serve as the head national official for all matters relating to cybersecurity and report directly to the president. In addition, the proposed legislation would call for streamlining of cyber-related government functions, as well as a public-private cybersecurity partnership. The president would have the authority to declare a "cyber security emergency" and direct a national response to such an event.

Cybersecurity has become a key issue of concern in recent months for members of Congress as well as the intelligence community. Last month, the Senate Select Committee on Intelligence announced the formation of a cybersecurity task force to evaluate cyber threats against the U.S. In November, the House Committee on Science and Technology passed H.R. 4061, the Cyersecurity Enhancement Act of 2009, which would streamline federal investments in cybersecurity research and development as well as improve cybersecurity and technical standards in the workforce and encourage cybersecurity partnerships between the public and private sectors. Late last year, President Obama named Howard Schmidt as the new White House Cybersecurity Coordinator.

DHS To Hold CFATS Webinar

2010-01-15T14:55:00.005-06:00

The Department of Homeland Security's Office of Infrastructure Protection (IP) on Friday announced that it will hold a webinar on February 22, 2010, from 2pm EST to 3pm EST, providing an update on the status of the Chemical Facility Anti-Terrorism Standards (CFATS). Sue Armstrong, Acting IP Deputy Assistant Secretary, will provide a CFATS activity and implementation update regarding tools and compliance assistance being developed by DHS. Click here to register for the webinar.

DHS Issues 60-Day Comment Request for CFATS Applicability to Gasoline Terminals

2010-01-13T16:42:00.011-06:00

The Department of Homeland Security's (DHS's) National Protection and Programs Directorate published a 60-day Request for Comments regarding the applicability of the Chemical Facility Anti-Terrorism Standards (CFATS) to gasoline terminals. DHS initially published the request on Tuesday, January 12, but republished it on Friday, January 15, due to footnote omissions. Broadly speaking, DHS seeks comments on the applicability of CFATS to gasoline terminals as a result of technical and procedural issues raised by industry, including the issues raised in the petition [petition exhibits] filed by the International Liquid Terminals Association (ILTA) in May 2009.

Request for Comments

DHS is requesting comments on three issues:

Comments on the inclusion of 6 CFR 27.203(b)(1)(v) (counting of Release-COI in gasoline, diesel, kerosene, or jet fuel in aboveground storage tanks) and 6 CFR 27.204(a)(2) (the flammable mixtures rule), as they apply to gasoline terminals;
Comments on the applicability of the modified VCE model to gasoline terminals, including: whether the reduction of the vapor yield for gasoline from ten percent (as in EPA’s VCE model) to one percent reasonably reflects the potential consequences for a vapor cloud explosion from gasoline (as compared to other liquid flammable chemicals); and whether a different yield factor adjustment might better reflect the potential consequences for a vapor cloud explosion from gasoline; and
Comments on whether a reasonable model exists or should be developed for future use that would allow DHS to estimate the plausible worst-case consequences of an uncontained pool fire resulting from a successful attack on gasoline terminals.

Interested parties may submit written comments by March 15, 2010, in one of two ways:

Online, through the Federal eRulemaking Portal; or
Via mail, to: U.S. Department of Homeland Security, National Protection and Programs Directorate, Office of Infrastructure Protection, Infrastructure Security Compliance Division, Mail Stop 8100, Washington, DC 20528.

PHMSA Proposes Lithium Battery Transport Rule

2010-01-12T16:46:00.004-06:00

The Department of Transportation's Pipeline and Hazardous Materials Safety Administration (PHMSA) on Monday issued a notice of proposed rulemaking (NPRM) that would amend the Hazardous Materials Regulations (HMR) [found at 49 CFR Parts 100-185] by increasing the safety of lithium batteries in transport. The proposed rule would implement requirements that all lithium batteries be packaged for transport in order to prevent damage leading to a catastrophic incident, or to minimize the effects of an incident. For all modes of transportation (including air), lithium cells and batteries would have to be packaged in such a way that protects the cell or battery from short-circuits. For air transport, the cells or batteries would be required to be transported in a container approved by the Federal Aviation Administration (FAA), or be stowed in crew-accessible cargo locations or a location equipped with an FAA-approved fire suppression system.

In addition, the rule would require lithium batteries be accompanied by hazard communication ensuring appropriate handling by air carrier personnel while in transport. This would include communicating to transport workers and emergency response personnel what to do in an emergency. Manufacturers of lithium cells or batteries would be required to mark each battery and cell to indicate satisfactory completion of United Nations (UN) design type tests, and to keep records of such tests.

Members of the public may submit written comments by March 12, 2010, in one of several ways:

Online, through the Federal eRulemaking Portal;
Via fax, at (202) 493-2251; or
Via mail, to: Docket Management System; U.S. Department of Transportation, Dockets Operations, M–30, Ground Floor, Room W12–140, 1200 New Jersey Avenue, SE., Washington, DC 20590–0001.

US Coast Guard Requests Comments on Cargo Securing Methods

2010-01-11T16:50:00.004-06:00

The U.S. Coast Guard (USCG) on Friday published in the Federal Register a Notice of request for comments on methods for securing cargo in transport vehicles and freight containers, in order to determine whether a standardized approval or certification process or improvised performance criteria for flexible strapping securing systems is needed. 75 Fed. Reg. 1070-71.

Currently, no certification or qualification standard exists under Federal law for blocking, bracing, or for the use of strapping systems for securing cargo. Under current federal regulation, cargo, including hazardous materials, transported above-ground (either in vehicles, rail, or on vessels) must be secured to prevent shifting of the cargo or damage to the container during transport. 49 CFR Part 176.76. However, the specific method by which the cargo is secured is unregulated. Oftentimes, flexible strapping is used even though it may not always properly secure cargo in transit. The USCG solicits comments while considering whether to implement a standardized certification or approval process for cargo securing systems.

The USCG is requesting comments on:

The need for a new approval
process or certification standard for cargo securing systems;
Information on currently used standards for the approval and use of cargo securing systems;
Methods for ensuring or verifying that securing systems adequately secure cargo without damaging the container or cargo;
Existing test methods for securing systems;
Materials used for securing cargo within the container (e.g. wood, plastic, bags, web, wire, chain, etc.);
Allowances for movement of cargo within the container when securing systems are used; and
Information on cargo securing systems that are currently being used to secure cargo in containers, both domestically and internationally.

Members of the public may submit written comments by March 9, 2010, in one of several ways:

Online, through the Federal eRulemaking Portal;
Via fax, at (202) 493-2251; or
Via mail, to: Docket Management Facility (M–30), U.S. Department of Transportation, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue, SE., Washington, DC 20590–0001.

Georgia Announces CSX Rail Security Partnership

2010-01-08T16:19:00.003-06:00

Georgia Governor Sonny Perdue announced Friday that the State of Georgia has entered into a rail security partnership with CSX Transportation. The public-private partnership, called "SecureNOW, allows the Georgia Emergency Management Agency-Office of Homeland Security (GEMA-OHS) to share critical security information, resources, and strategies with CSX, in order to enhance response capabilities to rail security events. GEMA-OHS will now have access to the rail company's secure online system, allowing state and local law enforcement officials to independently monitor, in real-time, the location of CSX railcars, as well as the contents of those railcars. The partnership also allows CSX to collaborate with local officials to jointly develop rail security training and preparedness exercises. CSX will begin providing 24/7 access to rail security professionals.

CSX has long promoted public-private partnerships. CSX promoted its SecureNOW program last year; SecureNOW pilot programs exist in Ohio, Indiana, Kentucky, Maryland, New Jersey and New York.

PHMSA Issues Correction to 2009 Final Rule Amending HMR

2010-01-05T15:24:00.005-06:00

The Department of Transportation's Pipeline and Hazardous Materials Safety Administration (PHMSA) on Monday published in the Federal Register corrections to a Final Rule issued last January, in response to two appeals filed last year. Because Monday's amendments impose no new requirements, notice and public comment procedures are unnecessary, making effective date of the Final Rule January 4, 2010.

Last year's Final Rule, published in the Federal Register on January 14, 2009, revised the Hazardous Materials Regulations (HMR) [at 49 CFR Parts 100-185] in several ways, most notably by amending regulations relating to the transportation of batteries and battery-powered devices. Appeals were subsequently filed by Dangerous Goods Transport Consulting, Inc., and HMT Associates, Inc., both dealing with the shipment of fuel cell cartridges, as regulated by the 2009 Final Rule. Monday's corrections included a number of editorial changes and clarifying amendments to those sections of the HMR modified by the 2009 Rule.

Limited Quantity Exception
The appeal filed by Dangerous Goods Transport Consulting dealt with changes to 49 CFR §172.230(g) that prohibited the ‘limited quantities’ classification of fuel cell fuel cartridges when transported by air, but did allow identical materials to be called a ‘consumer commodity’ and be re-classified as 'other regulated materials-domestic' (ORM-D) in air transport. Additionally, similar quantities of the actual fuel can be shipped as ‘limited quantities’ when not contained in a fuel cell cartridge.

PHMSA acknowledges the inconsistency raised in the appeal, but noted that the harmonization of the HMR with international rules “promotes safety and facilitates international trade by minimizing the costs and other burdens of complying with multiple or inconsistent safety requirements. Thus, the benefits of a harmonized domestic and international transportation regime outweigh the costs that may be incurred.” 75 Fed. Reg. 64.

In yesterday's corrections, PHMSA also noted that the “ICAO Dangerous Goods Panel is currently considering adoption of limited quantity exceptions, based in part on a proposal from the U.S. Fuel Cell Council (FCC)”. 75 Fed. Reg. 64. If such a change is adopted as expected, PHMSA said that they would reconsider the ‘limited quantity’ exception in future rulemakings.

Multi-Modal Packing Requirements
The appeal filed by HMT Associates concerned the provision in 49 CFR 173.230(e) requiring intermediate packaging for fuel cell cartridges packed with equipment for all modes of transportation. HMT contended that this was inconsistent with international recommendations for shipping modes, other than for air. HMT further noted that the language in the 2009 rule's original notice of proposed rulemaking (NPRM) published on July 31st, 2008, did not contain the language applying the intermediate container restrictions to non-aviation transportation modes.

In yesterday's corrections notice, PHMSA agreed that the language objected to in HMT's appeal was consistent with neither the original NPRM language nor with international guidelines. PHMSA noted that they had intended the requirement for intermediate packaging of fuel cell cartridges packed with equipment be limited to packaging prepared for air transport consistent with the International Civil Aviation Organization’s Technical Instructions for the Safe Transport of Dangerous Goods by Air (ICAO TI).

As a result, PHMSA has granted HMT's appeal. They are changing §173.230(e)(2)(i) and §172.230(f)(4) to fully align the fuel cell cartridges packaging requirements with the multimodal packing requirements prescribed in ICAO TI Packing Instructions 217 and UN Recommendations Packing Instruction P004. Additional clarifying changes are being made to §173.230, such as correcting the terminology in (f)(2) from ‘fuel cells’ to read ‘fuel cell cartridges.’

Critical Infrastructure Webinar To Be Held January 6

2010-01-04T14:30:00.005-06:00

The Department of Homeland Security (DHS) will be holding a Webinar on January 6, 2010, from 3:00-4:00PM EST, called Critical Infrastructure Resilience: The Next Frontier in Homeland Security, to discuss the Infrastructure Protection mission. Under Secretary for DHS's National Protection and Programs Directorate (NIPP) Rand Beers will address the interdependencies and important steps DHS is taking to protect the country's critical infrastructure. The Webinar was originally scheduled for Monday, December 21, but was postponed due to weather. Click here to register.

Homeland Security Presidential Directive 7 (HSPD-7), released December 17, 2003, identified seventeen CIKR sectors: Agriculture and Food; Banking and Finance; Chemical; Commercial Facilities; Communications; Dams; Defense Industrial Base; Emergency Services; Energy; Government Facilities; Healthcare and Public Health; Information Technology; National Monuments and Icons; Nuclear Reactors, Materials and Waste; Postal and Shipping; Transportation Systems (including mass transit); and Water. An eighteenth CIKR, Critical Manufacturing, was formally established in 2008 by former DHS Secretary Michael Chertoff. The majority of the eighteen CIKRs are owned and operated by the private sector, creating a need for close collaboration between industry and DHS. NIPP streamlines methods to protect all eighteen CIKRs into a single program.

PHMSA Adjusts Fines for HMR Violations

2009-12-30T13:28:00.004-06:00

The Department of Transportation's Pipeline and Hazardous Materials Safety Administration (PHMSA) on Tuesday published in the Federal Register a Final Rule adjusting upwards the minimum and maximum civil fines for violations of the hazardous materials regulations (HMR) [at 49 CFR Parts 100-185]. These increases are based on the Consumer Price Index (CPI-U) for 2005 (the last time the fines were adjusted) and for 2008 (the last full year for which data is available). The new rates published in the December 29, 2009 Final Rule become effective December 31, 2009, and are applicable to any violation of the HMR made after January 1, 2010.

The new rule increases the minimum fine for an HMR violation from $250 to $275 dollars, except for a violation relating to training. HMR training violation fines increase from $450 to $495. Maximum fines are increased from $50,000 to $55,000, except where the HMR violation results in death, serious illness or severe injury to any person or substantial destruction of property. In those cases, the maximum fine increases from $100,000 to $110,000. No changes were made by the Final Rule to the fines for criminal offenses under the HMR.

The rule modifies the fines listed in 49 CFR §107.329(a), §107.329(b), and §171.1. No advance notice of proposed rule making (NPRM) was required because these fine adjustments were required by law. PHMSA has certified that this final rule will “not have an significant economic impact on a substantial number of small entities” because “there is no economic impact on any person who complies with Federal hazardous material transportation law and the regulations, orders, special permits, and approvals issued under that law” (74 FR 68702).

Annual TSA Enforcement Action Summary Released

2009-12-28T14:35:00.004-06:00

The Transportation Security Administration (TSA) on Monday published a notice in the Federal Register that they are making available, in accordance with 49 USC 114(v), a summary of enforcement actions it has taken in 2009 (through December 15th). According to the notice, these enforcement actions were “for violations of any surface transportation requirements under 49 U.S.C. and for any violations of chapter 701 of title 46 of the U.S. Code.” A complete summary of enforcement actions for all of 2009 will be made available in January.

The enforcement actions summary lists seven cases total, two of which relate to railcar chain of custody measures (49 CFR 1580.107(e)) and five of which relate to the Transportation Worker Identification Credential program (49 CFR 1570). TSA imposed no fine in any of the seven cases, issuing instead warnings. The provisions of 49 U.S.C. 114(v) would have permitted TSA to levy a civil penalty of up to $10,000 in each of the cases listed.

DHS's National Infrastructure Advisory Council to Hold Meeting

2009-12-22T23:55:00.003-06:00

Online, through the Federal eRulemaking Portal;
By emailing NIAC@dhs.gov;
Via fax, at (703) 235-3055; or
Via mail, to: Nancy Wong, Department of Homeland Security, National Protection and Programs Directorate, Washington, DC 20528 (IP/POD/PPIS Mail Stop 0607, B1, 3rd Floor).

DHS Releases Mass Transit Security Grant Assistance

2009-12-14T14:27:00.002-06:00

The Department of Homeland Security (DHS) on Monday announced the release of more than $253 million in grant money available for high-risk mass transit systems. The Transit Security Grant Program is designed to assist high-risk mass transit systems with the purchase of equipment and training in order to address threats from terrorists and natural disasters. Grant applications are due February 18.

Congress appropriates money annually for emergency preparedness and critical asset protection. Security at mass transit systems, including subways and light rails, has come under scrutiny in recent months. Last week, the House Transportation and Infrastructure Committee heard testimony from Department of Transportation (DOT) Secretary Ray LaHood and other administration heads asking Congress to give the federal government regulatory authority over state and local mass transit systems. Urged legislation, if passed, would give the DOT's Federal Transit Administration (FTA) authority to issue regulations mandating security measures for rail transit systems.

DOT Publishes Final Rule Amending Air Transport Security Requirements for Chemical Oxygen Generators

2009-12-12T10:41:00.001-06:00

The Department of Transportation (DOT) on Friday published in the Federal Register confirmation of the effective date of a Final Rule published earlier this year amending the Hazardous Materials Regulations (HMR) [49 CFR Parts 100-185] by revising the quantity limitation from 25kg "gross" to 25kg "net" for packages of chemical oxygen generators transported aboard cargo aircraft. The effective date was confirmed to have been November 16, 2009, by the DOT's Pipeline and Hazardous Materials Safety Administration (PHMSA), after no adverse comments were filed in regard to the October 15, 2009 Direct Final Rule.

The October 15 Direct Final Rule revises a Final Rule issued originally in January 31, 2007, enhancing the safety standards of cylinders of compressed oxygen, other oxidizing gases, and chemical oxygen generators being transported in aircraft. The January 31 Final Rule amended the HMR to require these products to be transported in outer packaging that (1) meets the same flame penetration resistance standards as required for cargo compartment sidewalls and ceiling panels in transport category airplanes; and (2) provides certain thermal protection capabilities so as to retain its contents during an otherwise controllable cargo compartment fire.

House Committee Considers Greater Federal Oversight Over Mass Transit Systems

2009-12-10T11:00:00.006-06:00

The House Transportation and Infrastructure Committee on Tuesday heard testimony from Department of Transportation (DOT) Secretary Ray LaHood and other administration heads asking Congress to give the federal government regulatory authority over the nation's subways, light rails, and other mass transit systems. Urged legislation, if passed, would give the DOT's Federal Transit Administration (FTA) authority to issue regulations mandating security measures for rail transit systems. In his testimony, LaHood noted that mass rail systems are responsible for transporting more passengers daily than are domestic airlines - which are regulated by DOT's Federal Aviation Administration - or passenger and commuter railroads - regulated by DOT's Federal Railroad Administration. Alternatively, local rail systems are responsible for creating and implementing their own independent security measures, which are overseen by state-run agencies.

DOT members have sent a plan to Congress that would permit federal regulation of mass transit systems. According to LaHood, the proposal would accomplish three goals. First, it would require DOT to establish and enforce minimum Federal safety standards for rail transit systems that receive Federal transit funding. Second, the DOT would establish a safety certification program whereby a state would be eligible for federal transit assistance to carry out a federally-approved public transportation safety program. Finally, the program would ensure that State agencies with oversight authority over transit system security be fully financially independent from those transit systems. The proposal now goes to Congress for consideration and debate.

DHS Launches Collaborative Emergency Response Tool

2009-12-09T11:05:00.005-06:00

The Department of Homeland Security (DHS) on Wednesday officially launched Virtual USA, an information sharing tool that helps local and state responders share the location and status of critical assets and information. The program, which has been in development by DHS's Science and Technology Directorate for more than a year, assists federal, state, and local responders track emergency vehicle and ambulance locations, weather and traffic conditions, and evacuation routes (among other things) when responding to an emergency. Virtual USA works as a technology collaboration tool, allowing real-time information sharing from the public that draws on input from local and state first responders. The program utilizes open source software to allow for information sharing between all levels of response - from federal to tribal.

Virtual USA is modeled after a program, Virtual Alabama, developed in 2007 by the Alabama Department of Homeland Security to implement information sharing at the local level to aid first responders. A meeting was held earlier this year to discuss the Virtual USA spin-off, with representatives from Florida, Alabama, Mississippi, Louisiana, Texas, Virginia, Tennessee, and Georgia in attendance. Those eight states have been operating Virtual USA pilot programs since the meeting. The Virginia program alone has reduced hazardous materials incident response time in that state by at least seventy percent.

Senate Intelligence Committee Announces Cybersecurity Task Force

2009-12-08T09:56:00.000-06:00

The Senate Select Committee on Intelligence announced Tuesday the formation of a cybersecurity task force to evaluate cyber threats against the U.S. Senators Mikulski (D-MD) and Snowe (R-ME) will serve as task force members. Senator Whitehouse (D-RI) will serve as task force chair. Among other things, the task force will issue recommendations relating to cyber threats and cyber security to the U.S. intelligence community. The task force will serve until June 2010.

Cybersecurity has become a key issue of concern in recent months for members of Congress as well as the intelligence community. Last month, the House Committee on Science and Technology passed H.R. 4061, the Cyersecurity Enhancement Act of 2009, which would streamline federal investments in cybersecurity research and development as well as improve cybersecurity and technical standards in the workforce and encourage cybersecurity partnerships between the public and private sectors. Also in November, the Senate Committee on the Judiciary's Subcommittee on Terrorism and Homeland Security held a two-panel hearing called “Cybersecurity: Preventing Terrorist Attacks and Protecting Privacy in Cyberspace” to discuss the growing risk of cyber attacks. The first panel included representatives from the Department of Homeland Security (DHS), Department of Justice (DOJ), the Federal Bureau of Investigation (FBI), and the Department of Defense (DOD). The second panel included Senior Counsel of the Center for Democracy and Technology and the President of the Internet Security Alliance. Testimony was heard regarding al-Qaeda's growing awareness of U.S. cyber vulnerabilities, and their increased interest in learning computer hacking skills. Some members of the panels added that gaps exist in current cybersecurity laws such that new and growing threats are not being addressed.

BASF Installing Real-Time Tracking System on Chemical Railcars

2009-12-07T11:58:00.004-06:00

German chemical company BASF is completing the installation of a real-time tracking system on U.S. railcars carrying the company's six most hazardous chemicals, as mentioned in the Department of Homeland Security's (DHS's) Daily Open Source Infrastructure Report on Monday. The wireless tracking system, consisting of a VeriWise tracking unit with a GPS receiver and communications satellite transceiver, allows the company to monitor the location of approximately 1,000 of its 7,000 railcars that travel to and from chemical plants. Some of the systems also contain sensors to monitor the conditions on and around the railcar, including detection for impact and motion and temperature gauges. The system transmits all information via satellite to a VeriWise server, identifying the railcar with an ID number. In the event of an incident, such as a collision or tampering with the railcar, VeriWise sends an alert to BASF. The upgraded system also allows BASF to communicate with the mounted devices, providing two-way communication capabilities. Eventually, BASF plans to equip a total of 1,200 of its railcars with the tracking system.

In the wake of increased chemical security regulations in recent years, including the Chemical Facility Anti-Terrorism Standards and the Rail Transportation Security Final Rule, security of railcars carrying hazardous chemicals has increased. Tracking and monitoring of such railcars as well as chain of custody and control procedures at facility loading and unloading stations have become necessary in order to address new security regulations.

DHS Announces Mass Transportation Security Study

2009-12-06T11:18:00.005-06:00

Last Wednesday, the Department of Homeland Security (DHS) and the Massachusetts Bay Transportation Authority (MBTA) announced the beginning of a study led by DHS's Science & Technology Directorate to examine the effect of a release of airborne contaminants into subway and mass transit systems. The project will include studying both chemical and biological compounds, in order to determine how best to respond to a release in the wake of a chemical or biological terrorist attack on the nation's public transportation system. According to DHS, the MBTA subway system will be used to test particle concentrations throughout the subway system in order to help design detection systems as well as to help plan emergency and security response strategies. Testing began yesterday, and will run until December 11.

Transportation systems, including mass transit, make up one of eighteen sectors deemed "critical infrastructure and key resources" (CIKR) in Homeland Security Presidential Directive 7 (HSPD-7). Wednesday's announcement comes about a month after several news stories reported that the White House has proposed the passage of federal regulations that would oversee the security of mass transit systems, including subways and light rail systems, across the country. Earlier this week, the House of Representatives passed a resolution mandating the Transportation Security Administration (TSA) to enhance security of the nation's rail and mass transit systems.

House Passes Rail and Mass Transit Security Resolution

2009-12-03T13:23:00.003-06:00

The U.S. House of Representatives on Thursday passed H.Res. 28, enhancing security of the nation's rail and mass transit systems, in a 417-3 vote. The resolution, sponsored by Rep. Jackson-Lee (D-TX), would allow the Transportation Security Administration (TSA) to enhance security measures at the nation's rail and mass transit lines, under Congressional mandate provided by the Implementing Recommendations of the 9/11 Commission Act of 2007. H.Res. 28 mandates TSA to:

Continue to enhance security to the nation's rail and mass transit systems and other surface transportation modes;
Continue developing TSA's National Explosives Detection Canine Team Program, which has effectively secured the nation's rail and mass transit systems from explosives threats; and
Enhance online training programs to ensure that individuals responsible for securing surface transportation systems are highly trained to prevent and respond to potential terrorist attacks.

In June, the House passed H.R. 2200, the Transportation Security Administration Authorization Act of 2009, which authorizes TSA to implement security over the nation's rail and mass transit systems. That measure has been referred to the Senate Committee on Commerce, Science, and Transportation, and is awaiting Senate action.

DHS Holds Third SCC Meeting

2009-11-30T15:49:00.004-06:00

Department of Homeland Security (DHS) Secretary Janet Napolitano on Tuesday held the last of a series of three meetings with members of the private sector in an effort to improve security of the nation's critical infrastructure. Leaders from several Sector Coordinating Councils (SCCs) were present, including those from the Information Technology, Communications, Manufacturing, Agriculture and Food, Defense Industrial Base, Dams, and Commercial Facilities Sectors. Secretary Napolitano asked members of the private sector for feedback on ways to improve public-private sector collaboration for the shared responsibility of protecting critical infrastructure and key resources (CIKR).

Also on Tuesday, DHS announced that Secretary Napolitano will meet with leaders in New York later this week from the real estate, professional sports, financial, and media industries to discuss ways to jointly protect the nation's critical infrastructure.

Homeland Security Presidential Directive 7 (HSPD-7), released December 17, 2003, identified seventeen CIKR sectors: Agriculture and Food; Banking and Finance; Chemical; Commercial Facilities; Communications; Dams; Defense Industrial Base; Emergency Services; Energy; Government Facilities; Healthcare and Public Health; Information Technology; National Monuments and Icons; Nuclear Reactors, Materials and Waste; Postal and Shipping; Transportation Systems (including mass transit); and Water. An eighteenth CIKR, Critical Manufacturing, was formally established in 2008 by former DHS Secretary Michael Chertoff. The majority of the eighteen CIKRs are owned and operated by the private sector, creating a need for close collaboration between industry and DHS. SCCs from the CIKRs serve as coordinating entities.

DHS Announces 2010 Chemical Sector Security Summit

2009-11-23T23:59:00.005-06:00

The Department of Homeland Security (DHS) on Monday announced its 2010 Chemical Sector Security Summit, to take place July 7 and 8 in Baltimore, Maryland. The summit is co-sponsored by DHS's Office of Infrastructure Protection and the Chemical Sector Coordinating Council.

The annual Chemical Sector Security Summit is a chance for members of the security industry to network and share information with other professionals, as well as to ask questions specific to chemical security. In particular, DHS expects significant discussion surrounding the current version of the Chemical Facility Anti-Terrorism Standards (CFATS) as well as the future of chemical security, including the recent passage of H.R. 2868 by the House of Representatives. The Summit should be particularly important for those involved with corporate and facility security, health and safety, and the transportation of chemical products. Key topics of discussion will include:

Agency Update on Chemical Security Regulations;
Chemical Industry Resiliency;
Cybersecurity; and
Industry Practices

Click here to sign up for DHS email notifications regarding the Summit.

TSA Proposes Aircraft Repair Station Security Rule

2009-11-19T14:47:00.006-06:00

The Transportation Security Administration (TSA) on Wednesday published a Notice of Proposed Rulemaking (NPRM) in the Federal Register that would effect security regulations for domestic and foreign aircraft repair stations, as required by the Vision 100-Century of Aviation Reauthorization Act. The NPRM, published at 74 Fed. Reg. 59874-90, would amend 49 CFR Part 1520 and add new Part 1554, to establish security requirements for aircraft repair stations certified by the Federal Aviation Administration (FAA).

The FAA currently implements extensive safety requirements for both domestic and foreign aircraft repair stations. However, TSA recognizes the distinction between safety and security, and stated in its NPRM on Wednesday that:

supplementing [FAA's] requirements with specific security measures for both foreign and domestic repair stations would further reduce the likelihood that terrorists would be able to gain access to aircraft under repair . . . the importance of requiring all aircraft repair stations to have measures in place to prevent persons from commandeering, tampering, or sabotaging aircraft has increased . . Enhancement of repair station security will mitigate the potential threat that an aircraft could be used as a weapon or that an aircraft could be destroyed.

Among other things, the proposed rule would:

Require repair stations to adopt and carry out a "standard security program" issued by TSA;
Require each security program to describe specific measures being implemented to 1) identify individuals with authorized access to the repair station, aircraft, and aircraft components; 2) control access to the repair station, aircraft, and aircraft components; 3) use escort measures for authorized visitors; 4) provide security awareness training to all employees; 5) verify employee background information; and 6) designate a security coordinator;
Require repair stations to allow TSA and DHS officials to enter, inspect, audit, and test property, facilities, and records relevant to repair stations; and
Amend 49 CFR Part 1520 to include repair station security programs as Sensitive Security Information (SSI).

The proposed rule would exempt repair stations operating on a Federal government facility, and would require different security measures for repair stations located on or adjacent to airports from those located at off-airport locations. In order to conduct a security assessment prior to implementing the standard security program, TSA would require each regulated repair station to provide assessment information, including location information and employee number and aircraft access information.

TSA solicits comments to the NPRM, which must be submitted by January 19, 2010. Comments should be identified by Docket No. TSA-2004-17131, and may be submitted electronically using the Federal eRulemaking portal.

Cybersecurity Act Passes House Committee

2009-11-18T20:32:00.003-06:00

Members of Congress introduced legislation earlier this month that would address the increasing need for revamped cybersecurity measures in both the public sector and among industry. H.R. 4061, the Cybersecurity Enhancement Act of 2009, is actually a consolidated version of two separate Committee discussion drafts: the Cybersecurity Research and Development Amendments Act of 2009 and the Cybersecurity Coordination and Awareness Act of 2009. It was referred to the House Committee on Science and Technology on November 7 and passed the committee by a voice vote on Wednesday. The bill would extend and amend the Cyber Security Research and Development Act passed in 2002 to streamline federal investments in cybersecurity research and development. H.R. 4061 would also improve cybersecurity and technical standards in the workforce and encourage cybersecurity partnerships between the public and private sectors.

Cybersecurity has become a major topic of concern among legislators and executive agencies in recent months. On Tuesday, the Senate Committee on the Judiciary's Subcommittee on Terrorism and Homeland Security held a two-panel hearing called “Cybersecurity: Preventing Terrorist Attacks and Protecting Privacy in Cyberspace" to discuss the growing risk of cyber attacks. The first panel included representatives from the Department of Homeland Security (DHS), Department of Justice (DOJ), the Federal Bureau of Investigation (FBI), and the Department of Defense (DOD). The second panel included Senior Counsel of the Center for Democracy and Technology and the President of the Internet Security Alliance. During the hearing, Deputy Assistant Director of the FBI's Cyber Division, Steven Chabinsky, testified that:

the FBI is aware of and investigating individuals who are affiliated with or sympathetic to al-Qaeda who have recognized and discussed the vulnerabilities of the U.S. infrastructure to cyber attack, who have demonstrated an interest in elevating their computer hacking skills, and who are seeking more sophisticated capabilities . . . [I]t is worth remaining mindful that terrorists do not require long term, persistent network access to accomplish some or all of their goals. Rather, a compelling act of terror in cyberspace could take advantage of a limited window of opportunity to access and then destroy portions of our networked infrastructure. The likelihood that such an opportunity will present itself to terrorists is increased by the fact that we, as a nation, continue to deploy new technologies without having in place sufficient hardware or software assurance schemes, or sufficient security processes that extend through the entire lifecycle of our networks.

Philip Reitinger, Deputy Under Secretary of DHS's National Protection and Programs Directorate, agreed, adding that gaps exist in current cybersecurity laws such that new and growing threats are not being addressed.

Members of the panels disagreed, however, on how to best address cybersecurity in new legislation. Larry Clinton of the Internet Security Alliance spoke out against federally-regulated cybersecurity measures at private businesses and in favor of market-based initiatives, stating that "[f]ederally-imposed mandates on the broad private sector will not work and will be seriously counterproductive to both our economic security and our national security." However, Larry Wortzel, Vice Chairman of the U.S.-China Economic and Security Review Commission, testified in favor of some federal mandates of private cybersecurity measures, supporting the position that the National Security Agency (NSA) - as opposed to some other federal agency - should be in charge of regulating cybersecurity, with assistance from DHS.

The Government Accountability Office (GAO) also submitted testimony to the subcommittee, pinpointing weaknesses in federal information system security controls at federal agencies and reiterating previously-made suggestions for cybersecurity improvements.

DHS Holds SCC Meeting, Launches New Critical Infrastructure Website

2009-11-17T23:19:00.000-06:00

Department of Homeland Security (DHS) Secretary Janet Napolitano on Tuesday held the first of a series of three meetings with members of the private sector in an effort to improve security of the nation's critical infrastructure. Leaders from several Sector Coordinating Councils (SCCs) were present, including those from the Energy, Nuclear, Water, and Chemical Sectors.

Also Tuesday, DHS launched a new website designed to increase public awareness of critical infrastructure security. Among other things, the new website provides publicly-accessible information regarding the need to safeguard the nation's critical infrastructure and key resources (CIKR), including potential vulnerabilities at chemical facilities and information about the National Response Framework.

Homeland Security Presidential Directive 7 (HSPD-7), released December 17, 2003, identified seventeen CIKR sectors: Agriculture and Food; Banking and Finance; Chemical; Commercial Facilities; Communications; Dams; Defense Industrial Base; Emergency Services; Energy; Government Facilities; Healthcare and Public Health; Information Technology; National Monuments and Icons; Nuclear Reactors, Materials and Waste; Postal and Shipping; Transportation Systems (including mass transit); and Water. An eighteenth CIKR, Critical Manufacturing, was formally established in 2008 by former DHS Secretary Michael Chertoff. The majority of the eighteen CIKRs are owned and operated by the private sector, creating a need for close collaboration between industry and DHS. SCCs from the CIKRs serve as coordinating entities.

CFATS Facility Material Modifications

2009-11-12T11:23:00.000-06:00

In the Chemical Facility Anti-Terrorism Standards (CFATS) Final Rule, published at 6 CFR Part 27, the Department of Homeland Security (DHS) requires covered facilities to submit a revised Top-Screen within sixty days of any "material modification [made] to its operations or site." DHS will then "notify the covered facility as to whether the covered facility must submit a revised Security Vulnerability Assessment, Site Security Plan, or both." 6 C.F.R. §27.210(d). DHS does not, however, provide a definition of "material modification." In the preamble to CFATS, DHS addressed one commenter's request for such a definition, replying with an explanation that:

Material modifications can include a whole host of changes, and for that reason, the Department cannot provide an exhaustive list of material modifications. In general, though, DHS expects that material modifications would likely include changes at a facility to chemical holdings (including the presence of a new chemical, increased amount of an existing chemical, or the modified use of a given chemical) or to site physical configuration, which may (1) substantially increase the level of consequence should a terrorist attack or incident occur; (2) substantially increase a facility’s vulnerabilities from those identified in the facility’s Security Vulnerability Assessment; (3) substantially effect [sic] the information already provided in the facility’s Top-Screen submission; or (4) substantially effect [sic] the measures contained in the facility’s Site Security Plan.

That being said, the term "material modification" is not as straightforward as it might seem.

Material Modifications Triggering Resubmission
Some changes at the facility are tied directly to the CFATS Appendix A Final Rule, which lists the Chemicals of Interest (COI) and their Screening Threshold Quantities (STQs) that trigger initial Top-Screen submission. These modifications would, undoubtedly, be considered "material," since they are tied directly to the initial CFATS trigger (i.e. the Top-Screen). For example, a facility that acquires a new COI at or above the requisite STQ has a "material modification" that triggers re-submission of its Top-Screen. Alternatively, a facility that reduces a COI below its STQ or eliminates a COI entirely has made a "material modification" that could act in its favor, and should re-submit its Top-Screen.

Potentially Material Modifications
Other potential modifications made at the facility, however, are less clear as to their materiality. In essence - what does "material" mean?

For example, a facility that stores 5,000,000 pounds of Methane, which is listed as a Release-Flammable COI, in below-ground tanks, responds to demand spikes by adding 250,000 additional pounds of Methane, for a total increase of 5%. Methane is the only COI stored by the facility. Is this a "material modification" as envisioned by DHS and CFATS? On the one hand, the facility is increasing the amount of Methane being stored, which reflects, as explained in the CFATS Preamble, an "increased amount of an existing chemical." On the other hand, the increase does not change the facility's initial storage of Methane at an amount significantly above the Appendix A STQ, which would arguably not substantially affect the facility's original Top-Screen and/or security vulnerability.

Another example of a facility modification that may or may not be considered "material" for purposes of 6 C.F.R. §27.210(d) is the replacement of one National Fire Protection Association (NFPA) 4 material with another NFPA 4 material, where all other factors (such as storage location, volume, facility security measures, etc.) remain the same.

Facility Compliance
In light of the gray areas surrounding "material modifications" and resubmission of Top-Screens, many companies may face facility-specific questions regarding modifications and whether they merit a new Top-Screen submission. To be on the safe side, facilities should err on the side of resubmission when in doubt. However, they should do so knowing that resubmission opens the door for resubmission of a new Security Vulnerability Assessment (SVA) and, possibly, resubmission and alteration of an already-approved Site Security Plan (SSP).

MTSA Provisions in H.R. 2868

2009-11-11T09:57:00.000-06:00

When the House of Representatives passed H.R. 2868 last week, one of the objectives was to correct the perceived deficiencies in the current Chemical Facility Anti-Terrorism Standards (CFATS), published at 6 CFR Part 27. One specific shortcoming addressed in H.R. 2868 was the removal of the CFATS exemption for facilities covered under the Maritime Transportation Security Act (MTSA). H.R. 2868, as passed in the House, would specifically cover chemical facilities required to submit an MTSA facility security plan, pursuant to Section 70103(c) of Title 46 of the U.S. Code.

Congress was concerned that, while MTSA does require general security measures for all covered maritime facilities, the specific security risks associated with high-risk chemical facilities are not adequately addressed in MTSA. Congress did recognize that significant security actions have been taken by such MTSA-regulated facilities; thus, special provisions were included in H.R. 2868 to address the coordination of CFATS and MTSA.

Regulation of Maritime Facilities

Section 2103(f)(1) of Title 1 of H.R. 2868 would give the DHS Secretary authorization to add coverage of maritime chemical facilities to the current CFATS regulations. The Secretary would be required to revise CFATS to provide for:

Requiring MTSA chemical facilities to submit information to the Secretary to allow for determination of whether the facility is a covered, high-risk chemical facility and determination of the appropriate tier ranking for such covered facilities (§2103(f)(1)(A));

Requiring covered facilities to update vulnerability assessments and facility security plans approved under MTSA regulations to “to ensure an equivalent level of security for substances of concern” (§2103(f)(1)(B));

Providing that the fulfillment of the personnel surety requirements set forth in the MTSA regulations will satisfy the §2115 requirements of HR 2868 for MTSA covered facilities (§2103(f)(1)(C)); and

Requiring covered facilities regulated under MTSA to “apply the information sharing and protection requirements in section 2110” (§2103(f)(1)(D)).

Coordination of Regulations

The House recognized that having two different security regulations affecting the same facility could cause some requirement conflicts and overlap. In order to avoid duplication and conflicts in security regulations, H.R. 2868 would require DHS's Office of Infrastructure Protection (the agency responsible for CFATS regulations) and the Coast Guard to “enter into a formal agreement detailing their respective roles and responsibilities” in the enforcement of the two regulations. See H.R. 2868 §2103(f)(1)(F)(i).

H.R. 2868 specifically requires that this agreement would specify which agency would be responsible for CFATS enforcement at MTSA-covered facilities. See H.R. 2868 §2103(f)(1)(F)(ii). This would include ensuring that vulnerability assessments and facility security plans are in compliance with CFATS standards as well as enforcing the information sharing and protection requirements of H.R. 2868 §2110.

Senate Action Required

H.R. 2868 has come farther than any other legislation in establishing comprehensive chemical security requirements, but it is not yet law. The Senate has yet to conduct any chemical facility security hearings in the current session; nor are there any companion bills that have been making their way through the legislative process. H.R. 2868 has been assigned to the Senate Committee on Homeland Security and Governmental Affairs for action.

There has not yet been any indication of how the Senate will deal with H.R. 2868's MTSA requirements. MTSA-covered facilities should continue to monitor the progress of this H.R. 2868 as it makes its way through the Senate.

Senate Homeland Security Committee Considers New TSA Administrator

2009-11-10T14:45:00.000-06:00

The Senate Committee on Homeland Security and Governmental Affairs on Tuesday considered the nomination of Erroll Southers as the next Administrator of the Transportation Security Administration (TSA). Southers, who currently serves as Assistant Chief of Homeland Security and Intelligence at Los Angeles World Airports, would replace current Acting Administrator Gale Rossides. On Tuesday, Senator Joe Lieberman (ID-Conn.) recognized the improvements TSA has made since the September 11 attacks to strengthen security at airports, but commented on the need for TSA to "make more progress on increasing the security of other forms of transportation, particularly for mass transit and railways." Lieberman praised the nomination of Southers, noting his nearly three decades of experience working in public safety, homeland security, and intelligence.

The Committee on Tuesday also considered the nomination of Daniel Gordon as Administrator of the Office of Federal Procurement Policy (OFPP) at the Office of Management and Budget (OMB).

Homeland Security Advisory Council Announces December Teleconference

2009-11-10T10:51:00.000-06:00

The Department of Homeland Security (DHS) announced Tuesday in the Federal Register that its Homeland Security Advisory Council (HSAC) will hold a teleconference meeting on December 4, 2009, in order to review findings and recommendations made by its Sustainability and Efficiency Task Force. All members of the public are welcome to join by dialing into the teleconference, which will take place from 3PM to 4PM EST. Any written comments submitted by the public before the meeting must be received by November 30, 2009.

The HSAC advises DHS Secretary Janet Napolitano on homeland security matters. Members of HSAC include state and local government leaders, first responder communities, and individuals from the private sector and from academia. Secretary Napolitano created the Sustainability and Efficiency Task Force in June, in order to incorporate renewable resources and increased efficiency into DHS operations.

H.R. 2868 Passes in the House

2009-11-08T13:40:00.002-06:00

Late Friday afternoon, the House of Representatives passed H.R. 2868, The Chemical and Water Security Act, in a vote divided along party lines. The version of the bill that made its way to the House floor included provisions for chemical facility security, drinking water facility security, and security at waste water treatment works. The bill provides for comprehensive chemical security provisions at all three types of facilities while also addressing the unique security requirements for the water facilities.

Chemical and Water Security Act

Two different version of H.R. 2868 had been reported by both the House Homeland Security and House Energy and Commerce committees. In the Rules Committee report, those two versions were reconciled in a new version of the bill offered by Chairmen Thompson, Waxman and Oberstar, along with a key sub-committee chair from each of their respective committees. Additionally, the provisions of H.R. 3258 were rolled into Title II of H.R. 2868 and H.R. 2883 provisions were added as Title III.

The Department of Homeland Security (DHS) continues to have primary enforcement authority for chemical facility security, which now includes chemical facilities covered under the Maritime Transportation Security Act (MTSA), while the Environmental Protection Agency (EPA) is given authority for regulating security at drinking water treatment facilities and waste water treatment works. The EPA is required to work with DHS in developing the chemical security portions of the water security regulations. This allows for similar chemical security regulations at all high-risk facilities.

The reconciled version of Title I was based on both reported versions of H.R. 2868. The bulk of the language came from the version reported by the Homeland Security Committee with refining language taken from the Energy and Commerce Committee version. The Energy and Commerce version did provide the basis for the Title I sections dealing with methods to reduce the consequences of a terrorist attack (H.R. 2868 §2111), background checks on covered individuals (H.R. 2868 §2115), and citizen involvement (H.R. §§2116, 2117), again with modifying language from the Homeland Security Committee version.

Floor Amendments

H.R. 2868 was considered on the House floor for over a two-day period. On Thursday, there were ninety minutes of general bill debate. On Friday, ten amendments were offered, debated, and voted upon. The Rules Committee allowed five amendments from both sides of the aisle. As expected, all five amendments offered by the Democrats passed, four of which passed on voice votes with no organized opposition.

Only one of the five amendments offered by Republican representatives passed. That amendment dealt with the employee training grants in §2103(g)(4), which requires that grants be awarded on a competitive basis and prohibits congressional earmarks in the grant process. The four amendments that failed were essentially repeats of amendments that had been submitted in markups in both the Homeland Security and the Energy and Commerce committees. One amendment attempted to replace Title I with a straight extension of the Chemical Facility Anti-Terrorism Standards (CFATS) for an additional two years (beyond the current one-year extension found in the Department of Homeland Security Appropriations Act of 2010). Other amendments would have struck provisions for inherently safer technology (IST) and citizen enforcement and would have strengthened the bill's Federal preemption provisions.

The amendments introduced by the Democrats were led by Chairman Thompson’s amendment to make H.R. 2868 editorial corrections, which was the only one that had to undergo a roll call vote. One of the voice-vote approved amendments required the appointment of a DHS official to liaise with the State and local officials impacted by chemical facility emergency response requirements. Another amendment required that DHS report to Congress on the affects of the IST provisions on agriculture facilities. The other two amendments requires DHS to consider the special circumstances faced by small businesses and academic labs when developing the supporting regulations.

Moving to the Senate

The Chemical and Water Facility Act now moves to the Senate for action. Both the Chair and Ranking Member of the Senate Committee on Homeland Security & Governmental Affairs have expressed interest in seeing the passage of comprehensive chemical facility security legislation during this session. At the least, there will certainly continue to be extensive debate on the IST and citizen enforcement provisions of H.R. 2868.

H.R. 2868: Revision to Citizen Suits

2009-10-27T20:22:00.000-05:00

Earlier this month, when the House Energy and Commerce Committee reported favorably H.R. 2868, their amended version of the bill included significant changes to one provision that had drawn significant opposition from the chemical industry: the citizen suits provision found in §2116.

Background on Opposition

Back in June, when H.R. 2868 was introduced, one of the provisions that caused a great deal of discussion within the chemical industry was §2116, titled ‘Citizen Suits’. This was a new provision not found in last year’s H.R. 5577. It would have allowed any person to commence a civil action against anyone “who is alleged to be in violation of any standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to this title.” H.R. 2868 §2116(a)(1).

Industry commentors have been unanimous in their concerns about this provision. In addition to being worried about the potential expense of defending against nuisance lawsuits, they have noted their beliefs that security measures could inadvertently be compromised by the discovery process associated with citizen suits.

Citizen Enforcement

When the Energy and Commerce Committee reported favorably H.R. 2868, it changed the name of §2116 to ‘Citizen Enforcement’. It still provides for the initiation of civil suits against any federally-owned facilities or any other government entity that is in “violation of any order that has become effective pursuant to this title.” H.R. 2868 §2116(a)(1). It also provides for civil suits against the Secretary of the Department of Homeland Security (DHS) for “an alleged failure to perform any act or duty under this title that is not discretionary for the Secretary.” H.R. 2868 §2116(a)(2).

These citizen-initiated lawsuits would be brought either in the U.S. District Court of the district in which the alleged violation occurred or in the U.S. District Court for the District of Columbia. When such suits are conducted under §2116(a)(1), the Court may enforce the order in question or “order such governmental entity to take such action as may be necessary, or both.” H.R. 2868 §2116(b)(2). Additionally, the Court may levy civil penalties authorized under §2107 of H.R. 2868. When brought against the DHS Secretary, the Court may require performance of non-discretionary duties.

Sixty-day notice must be give before civil suits may be brought under this section “in such manner as the Secretary shall prescribe by regulation.” H.R. 2868 §2116(d). In suits against other governmental entities or federally-owned facilities, “the Secretary, if not a party, may intervene as a matter of right.” H.R. 2868 §2116(e).

Violations at Non-Federal Facilities

While non-federally-owned facilities are not subject to civil suits under §2116 in the version of H.R. 2868 reported by the Energy and Commerce Committee, the Committee did include new provisions for formal reports about non-performance by private individuals or facilities. These citizen petitions are provided for in new §2117. This section requires the DHS Secretary to develop regulations for the submission, investigation, and replying to such petitions. Additionally, those regulations must provide for the “de novo review of responses to petitions by the Office of the Inspector General for the Department of Homeland Security.” H.R. 2868 §2117(a)(4).

These regulations will provide for any person to report anyone, including government facilities or agencies, “alleged to be in violation of any standard, regulation, condition, requirement, prohibition, plan, or order that has become effective under this title.” H.R. 2868 §2117(b)(1). The petition must include a description of the alleged violation.

Department investigations will be required for all properly presented petitions. The investigation will determine if enforcement activities need to be taken by the Department. The results of all investigations will be reported back to the presenter, keeping within the constraints of the information protection rules set forth under §2110. Any decision not to pursue enforcement action will constitute final agency action under this section.

Not the Final Version

Once again there are significant differences between these provisions in the Energy and Commerce Committee reported version of H.R. 2868 and the Homeland Security Committee reported version. Those differences will have to be reconciled before the bill can come before the full House for a final vote. This certainly means that the provisions of §2116 may yet undergo serious revisions before such a final vote.

New IST Provisions in H.R. 2868

2009-10-26T15:00:00.000-05:00

Earlier this month, the House Energy and Commerce Committee reported their version of H.R. 2868, the Chemical Facility Anti-Terrorism Act of 2009. Chairman Waxman’s Committee made some changes to §2111, titled “Methods To Reduce The Consequences Of A Terrorist Attack” and dealing with inherently safer technology (IST). This is one of the more contentious issues raised in this proposed comprehensive legislation to extend and make permanent the current Chemical Facility Anti-Terrorism Standards (CFATS).

Section 2101(2) of H.R. 2868 re-establishes the risk-based performance standards (RBPS) requirement of CFATS. One of the new bill’s additions to the current standards is §2101(2)(S), which requires “[a]ssessing and, as appropriate, utilizing methods to reduce the consequences of a terrorist attack.” Section 2111 flushes out specific requirements that must be met for this standard.

Changes in Assessment Requirements

The Energy and Commerce Committee made four revisions to the requirements for reporting assessments required under this section. First, they would require facilities to report on both the methods already implemented at the facility as well as those additional methods assessed. §2111(a)(1)(A). Then they required facilities to include a description of how much the implemented method had already reduced the consequences of a potential terrorist attack. §2111(a)(1)(B). These two changes provide a method for the facility to get credit for methods already implemented as part of the development of earlier site security plans.

Next, in §2111(a)(1)(C), they added the requirement to report “personnel implication” resulting from the assessed method. This change would require the facility to report on the number of jobs potentially lost if the method were implemented. This was added to address industry complaints that allowing DHS to mandate implementation of these methods would adversely impact the economics of continued production at the facility, resulting in job losses.

The final change in the assessment requirements is the definition of the word ‘feasible’. While not a ‘definition’ in the classical sense (it uses the word to define the word), it does require that DHS judge feasibility by the “examination for efficacy under field conditions and not solely under laboratory conditions.” §2111(a)(2). Again, this was added in an attempt to assuage industry concerns that DHS could mandate implementation of methods the had never been applied in an actual manufacturing environment.

Facilities Subject to Required Implementation
The original legislation provided that the Secretary could require implementation of the assessed methods at Tier 1 and Tier 2 facilities. The version reported out of the Energy and Commerce Committee restricts that requirement to only those facilities assigned to the top two tiers “because of the potential extent and likelihood of death, injury, and serious adverse effects to human health, the environment, critical infrastructure, public health, homeland security, national security, and the national economy from a release of a substance of concern at the covered chemical facility.” §2111(b)(1). This definition is used throughout the implementation portion of §2111.

The most important part of this modification is the use of the phrase “from a release of a substance of concern at the covered chemical facility.” This eliminates from consideration facilities that are Tier 1 or Tier 2 due to possession of a substance of concern other than release hazards. Facilities with chemicals that are only a theft or diversion hazard would not be subject to the mandated implementation requirements of this section.

Authority to Require Implementation

The introduced legislation would have given the authority to require implementation of methods to reduce the consequences of a terrorist attack to the Secretary. While that authority would have certainly been delegated in the subsequent regulation, the Energy and Commerce Committee version of the bill would directly assign that responsibility to the Director of the Office of Chemical Facility Security (§2111(b)(1)(A)). Because the Director will be someone with a “demonstrated knowledge of … chemical facility security, hazard analysis, chemical process engineering, [and] chemical process safety reviews” (§2114(b)), this means that the decision is at least partially removed from the political realm of the Department and determined more at the technical level.

Since the legislation now brings facilities covered under the Maritime Transportation Security Act (MTSA) into the CFATS program, the MTSA covered community has expressed their concern about conflicts between CFATS and MTSA security programs. To help ensure that these two acts do not come into direct conflict, the Energy and Commerce Committee version of the bill requires the Director to consult “with the Captain of the Port for the area in which the covered chemical facility is located” (§2111(b)(1)(C)) prior to requiring the facility to implement a method to reduce the consequences of a terrorist attack.

Review of Inability to Comply

The version of the legislation reported out of the Energy and Commerce Committee would extend the time limit for a facility to notify DHS of inability to comply with the mandate to implement specific measures to reduce consequences of a terrorist attack from sixty days to 120 days. This was done to give industry more time to prepare their reply to the Director’s mandate. The written explanation must include a detailed explanation of why the facility cannot comply.

Specifically, the “written explanation shall specify whether the owner or operator’s inability to comply arises under clause (ii) or (iii) of paragraph (1)(A), or both.” §2111(b)(2)(A). These clauses address the facility’s ability to ‘feasibly incorporate’ the mandated method into the facility’s operation, or whether implementation would “significantly and demonstrably impair the ability of the owner or operator of the covered chemical facility to continue the business of the facility at its location.” §2111(b)(1)(A)(iii). This wording implies that a violation of (1)(A)(i) would be insufficient grounds to justify noncompliance with the mandated change.

DHS would be given 120 days to conduct a review of the facility’s written explanation. During this period, the Secretary would be required to consult “with the owner or operator of the covered chemical facility who submitted such explanation, as well as experts in the subjects of environmental health and safety, security, chemistry, design and engineering, process controls and implementation, maintenance, production and operations, chemical process safety, and occupational health, as appropriate.”§2111(b)(2)(B). This was included in the Committee’s version of H.R. 2868 to respond to industry concerns that DHS does not have a staff adequately qualified to judge such technical matters.

There is an important legal phrase added into the wording of §2111(b)(2)(B). The phrase “in his or her discretion” is included, and is used to describe the final decision to require implementation. The importance of this phrase is found in §2116(a)(2), where it explains that citizens may bring civil actions “against the Secretary, for an alleged failure to perform any act or duty under this title that is not discretionary for the Secretary.” Thus, civil actions may not be instituted under §2116 for a decision by the Secretary not to require implementation of IST at a high-risk facility.

Agricultural Sector Provisions

The Energy and Commerce Committee added new provisions to §2111 that addressed specific requirements for the agricultural sector under “Sectoral Impacts.” §2111(c). The Secretary is required to provide ‘Farm Supplies Merchant Wholesalers’ (defined at §2111(c)(3)) with specific guidance, including, “as appropriate, tools, methodologies or computer software, to assist farm supplies merchant wholesalers in complying with the requirements of this section.” §2111(c)(3).

Additionally, DHS is required to report to Congress within six months of H.R. 2868 enactment on the impact of §2111 on “manufacturers, retailers, aerial commercial applicators, and distributors of pesticide and fertilizer.” §2111(c)(2). The report will include data on the number of these agricultural suppliers affected by both the assessment and potentially the implementation requirements of §2111. It would include a survey of “known methods, processes or practices, other than elimination of or cessation of manufacture of the pesticide or fertilizer,” including costs and technical feasibility. That survey will include possible impacts on “other sectors engaged in commerce” and recommendations on how to mitigate adverse impacts so identified. §2111(c)(2)(D).

Additional Work on IST Provisions

Before H.R. 2868 can come to a final vote on the House floor, the IST provisions may still undergo significant modifications. The version of H.R. 2868 produced by the House Homeland Security Committee contains significant differences that will have to be reconciled. Furthermore, modifications are certainly expected to be attempted in floor amendments, and those will come from both sides of the debate. This bill still has a long way to go before it appears in final form to be sent to the Senate for further modifications there.

Welcome to the Chemical Security Blog - Chemical Facility Anti Terrorism Standards ~~ CFATS

2009-03-27T17:02:00.000-05:00

The Roberts Law Group PLLC is a niche law firm that helps clients minimize liability and comply with homeland security laws and regulations, especially in the chemical, petrochemical, and defense markets. The Roberts Law Group is proud to count some of the nation’s largest companies among its clients, including many Fortune 50 and Fortune 100 companies.

As owners and operators of critical infrastructures, including oil refineries, chemical facilities, railroads, airports, and seaports, continue to implement security tools to combat changing threats, new laws and regulations often mandate how the guns, gates, and guards are deployed – and the consequences for failing to do so. Indeed, homeland security has become a legal matter that bridges the corporate law department and the corporate security department as never before: both must work cooperatively. It is against this backdrop that The Roberts Law Group PLLC provides clear advice and counsel, combining legal expertise with a sophisticated knowledge of homeland security and counterterrorism.

In particular, The Roberts Law Group can help you understand and comply with:

The Chemical Facility Anti-Terrorism Standards (CFATS)
The Transportation Worker Identification Credential (TWIC)
The Maritime Transportation Security Act (MTSA)
Rail Security Regulations, Including the Transportation of Hazardous Materials
Homeland Security Public Policy and Administrative Law