Sunday, June 8, 2014

EO 13650 Report Published - CFATS

This week the Chemical Facility Safety and Security Working Group published their report as required by the President’s Executive Order on Improving Chemical Safety and Security (EO 13650). I have been a sceptic about the potential accomplishments of this group, but I do have to admit that this 122 page report, “Actions to Improve Chemical Facility Safety and Security – A Shared Commitment” is a pretty good effort at identifying the actions that the government (at all levels) and industry need to take to improve chemical safety and security.

Many people will be less than satisfied that the report does not spell out in more detail the specific language that should be included in new and/or revised regulations or legislation. That is not, however, the purpose of a report like this. The hard work of crafting legal language can only come after the general policy has been developed. This is a policy document, the necessary precursor to the time consuming process of changing the course of the regulatory machinery.

The Executive Summary of the document (occupying 7 pages of the document all by itself) identifies ‘five thematic areas’ in the document {pg v}:

• Strengthening community planning and preparedness;
• Enhancing Federal operational coordination;
• Improving data management;
• Modernizing policies and regulations; and
• Incorporating stakeholder feedback and developing best practices.

In each of these areas the Working Group has sought to identify actions that can be taken immediately within the current regulatory framework that addresses chemical safety and security. These include actions that have already been taken by the Working Group and the federal agencies that they represent. They also identified future actions that they are recommending to the President that include both regulatory and legislative initiatives that would support the Working Groups findings.

As with any policy development like this, the devil is now in the details of implementing that policy. With only 30 months left in the Obama Administration, most of these changes will not be completed by the time that a new President is sworn in in January of 2017. The political measure of the effectiveness of these policy proposals will be how well the survive the transition to the next Administration.

CFATS Improvements

The report makes it clear (pgs 45 – 47) that a significant portion of the actions to be taken to improve the Chemical Facility Anti-Terrorism Standards (CFATS) will come through changes to the CFATS regulations (6 CFR 27). Other than an update of the list of DHS chemicals of interest (COI) the report does not make any specific recommendations about changes to the CFATS regulations. It just notes that DHS has initiated a rulemaking process and will publish a notice of proposed rulemaking (ANPRM) in the near future.

The report does note that the Infrastructure Security Compliance Division (ISCD) of DHS NPPD is already taking some actions to upgrade their internal procedures in the following areas (pg 46):

• Improving the tiering methodology used to identify and provide risk tiers to high-risk chemical facilities, including planning how to incorporate economic consequences into the model;
• Coordinating chemical facility security activities in various DHS agencies and explore ways to increase harmonization among chemical facility security regulatory programs;
• Evaluating the various efforts taken to help identify facilities that should have submitted a CFATS Top-Screen but failed to do so, in order to determine the efficiency of those programs; and
• Identifying the most cost-effective way to continue to pursue potentially noncompliant facilities.

The report goes on to identify three congressional actions that will be necessary to improve the CFATS portions of improving the safety and security of chemical facilities:

• Authorizing CFATS for the long term;
• Streamlining the CFATS enforcement process; and
• Removing the water and wastewater treatment facility exemption to CFATS.

There are other CFATS proposed actions scattered through-out the remainder of the document. They include:

Strengthening Community Planning and Preparedness - Add layers of data to the Department of Homeland Security (DHS) Infrastructure Protection Gateway for LEPCs/TEPCs and SERCs/TERCs to identify regulated and unregulated facilities on a map. {pg xii}

Enhancing Ammonium Nitrate Safety and Security - Solicit feedback through a Chemical Facility Anti-Terrorism Standards (CFATS) Advance Notice of Proposed Rulemaking (ANPRM) on potential modification of the CFATS regulations to address ammonium nitrate. For example, consider lowering the current screening threshold quantities for ammonium nitrate under CFATS. {pg xvii}

Best Practice Guidance for CFATS Risk-Based Performance Standards – DHS will publish a Best Practice Guide regarding the CFATS Risk-based Performance Standards to share with industry. This effort seeks to increase stakeholder understanding and compliance with the CFATS regulation. {pg 48}

Best Practice Guidance for Implementing the Framework for Improving Critical Infrastructure Cybersecurityat Chemical Facilities –DHS will coordinate with industry to develop a voluntary guidance document for chemical facilities that increases awareness and use of the cybersecurity framework developed by the National Institute of Standards and Technology (NIST) to help critical infrastructure sectors and organizations reduce and manage their cyber risk. The document will provide standards, guidelines, and practices to help reduce cyber risks to chemical facilities and encourage them to manage cybersecurity as part of a complete hazards approach to enterprise risk management.  {pg 48}

Moving Forward

It will be interesting to see how long it takes OMB to clear the CFATS ANPRM. This might be a good measure of the Administration’s political will to carry through with the recommendations in this potentially important Working Group report.

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