DHS's National Infrastructure Advisory Council to Hold Meeting

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

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

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

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

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

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

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

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

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

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.