DHS Initiates Chemical Security Regulations
Evan Wolff
On November 20, 2007 the U.S. Department of Homeland Security (DHS) published "Appendix A," the final installment to the chemical security regulatory program, the Chemical Facility Anti-Terrorism Standards (CFATS), in the Federal Register. Promulgation signifies the department’s intent to commence full implementation of the CFATS program, thus initiating the first "new" security-specific regulation for critical infrastructure and key resources.
The appendix was issued after an extended review of the more than 4,300 comments DHS had received on the proposed list of "Chemicals of Interest" (COI). Approximately 4,000 of those comments focused on the propane standards.
The final rule sets forth the final list of approximately 300 chemicals of interest and "screening threshold quantities" (STQ) that will be used to determine whether chemical facilities must begin the preliminary screening requirements. DHS will use this information to determine if the facility presents a "high level of security risk," and if so, that facility will be required to comply with additional substantive security requirements of the CFATS regulation. Facilities will have 60 calendar days from the publication of Appendix A in the Federal Register to complete what’s called the Top-Screen.
CFATS establishes a contemporary and innovative regulatory approach based on a set of risked-based performance standards that covered facilities must satisfy; first by identifying vulnerabilities, and then by developing customized security plans. The regulatory scheme’s final approval mechanism involves a physical and documentary inspection program that verifies the security aspects called for in a facility’s site security plan.
The regulation of the chemical sector, long claimed to be the most vulnerable of the nation’s critical infrastructures, began with the President’s signature on the Department of Homeland Security Appropriations Act of 2007 (P.L. 109-295). In less than 800 words, Section 550 of that Act gave DHS the authority to regulate the nation’s high-risk chemical facilities. Acting quickly, DHS issued an Advance Notice of Rulemaking (ANRM) which provided a broad outline of the department’s regulatory approach.
After a public comment process, DHS released the Interim Final Rule (IFR), along with a proposed list of "Chemicals of Interest," known as Appendix A to the CFATS rule, formally establishing the CFATS portion of the rulemaking in 6 CFR Part 27. CFATS became effective on June 8, 2007. Acting on this authority, the department approached approximately 100 facilities for participation in "Phase 1" of the regulatory program. Facilities participating in Phase 1 were offered extensive technical assistance in all facets of the rule’s initial implementation.
This regulation will directly impact many industry sectors not traditionally considered part of the chemical manufacturing industry, including pulp and paper mills, petroleum facilities, food and agricultural facilities, pipelines, metal production and manufacturing facilities, and industrial cleaning facilities.
Businesses should carefully review the COI list, as it has changed significantly from the list proposed in the earlier Appendix A, including:
• Many of the STQs have been increased from the STQ of 75 percent to 100 percent of EPA’s Risk Management Program.
• DHS has identified one or more security risks associated with each chemical, known as "security issues," which are divided into three main categories: "release," "theft/diversion," and "sabotage/contamination." There is an additional category regarding chemicals critical to government missions and national economy, however no chemicals were listed in this category.
• DHS has assigned minimum concentration levels for each chemical that would trigger reporting, although those concentrations are not necessarily explicitly identified and, in an effort to maintain consistency across regulatory programs, may require cross-reference to other pre-existing regulatory standards.
• Academic and research institutions have been given specific guidance and potential exemptions to this regulation.
During the rulemaking process, the regulatory impact of these rules on non-chemical manufacturing facilities received much attention (i.e., impact on the agriculture sector and colleges and universities laboratories). In addressing some of these issues, as well as others received during the comment period, DHS developed a specialized approach to the following chemicals:
• Propane: The proposed STQ was 7,500 pounds; it is now 60,000 pounds, based on an estimate of industrial customers’ usage. Further, facilities do not need to count tanks of 10,000 pounds or less when calculating their total quantities.
• Chlorine: The proposed STQ was 1,875 pounds; it is now 2,000 pounds for the "release" category and 500 pounds for the "theft/diversion" category.
• Ammonium Nitrate (AN): The proposed STQ was 2,000 pounds; DHS now has created two categories for AN: for AN found in an explosive form, the STQ is 5,000 pounds; for AN commonly found in fertilizer, the STQ is 2,000 pounds.
• Acetone and Urea: Both of these chemicals had been on the initial draft list of chemicals, but have now been removed.
In the preamble and text of the final rule, DHS provides significant clarifications and revisions to CFATS, including specific guidance on the calculation of the STQ values which can have an impact on a facility’s reporting requirements. In addition to these changes, DHS provided specific guidance on the following issues:
• Natural gas and liquefied natural gas facilities must report COI stored in peak shaving facilities.
• DHS will now require reporting of certain fuels stored in above-ground tank farms, even those associated with pipeline systems.
• Chemicals used in a laboratory under supervision of a technically qualified individual are exempt from reporting.
• STQ are no longer required to be reported under "any amount," which would require facility reporting of any presence of a chemical. Rather, DHS assigns or refers to specific numeric quantities.
• DHS clarified the calculation of STQs in mixtures, and their concentrations, by providing minimum concentrations, delineated by security issue.
Appendix A further describes some exemptions and provides insight into DHS activities to further coordinate or harmonize the various chemical sector regulatory authorities. Harmonizing those authorities could prove to be an important, albeit complicated, effort by DHS, especially concerning facilities under the Maritime Transportation Security Act (MTSA) of 2002, where there will most certainly be significant overlap.
In a similar regard, Appendix A also establishes that facilities with multiple owner and/or operators have the flexibility to define their boundaries and identify responsible parties for reporting and other requirements under the regulation. However, when multiple owners and/or operators function within a "common infrastructure or within a single fenced area," it is clear that DHS may determine the reporting requirements depending on the circumstances.
The CFATS regulation represents an important milestone for DHS, not only in its effect on securing the U.S. chemical sector, but also as a symbolic step towards regulating the security of the nation’s critical infrastructure and key resources, which has traditionally been based on voluntary partnership between the federal government and the private sector. Following CFATS, commenters have suggested the chemical security regulatory measures could mark the beginning of a trend towards federal regulation of security for other critical infrastructure and key resource sectors. Regardless of the perspective of outsiders to the regulations, those directly affected have continued to enhance and document the security of our nation’s high-risk chemical facilities.
Evan D. Wolff is an attorney at Hunton and Willams, LLP and director of the homeland security practice in the law firm’s office in Washington, DC. Wolff can be contacted at
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