Chemical Sector Security Summit Summary – MTSA and CFATS Initiatives

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

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

FEMA Publishes Information Collection Request Notice in Federal Register

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.

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.

MTSA Provisions in H.R. 2868

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.

H.R. 2868 Passes in the House

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.