This is part of a continuing series taking a detailed look at the provisions of the new Chemical Facility Anti-terrorism Act of 2008 recently introduced in Congress (HR 5577IH). Today’s entry looks at Section 2103, Risk-Based Designation and Ranking Of Chemical Facilities.
Previous blogs in this series include:
· CFATA of 2008 Introduced as HR. 5577
· Personnel Background Checks and HR 5577
Substance of Concern
Sub-paragraph ‘a’ allows the Secretary to designate “any chemical substance as a substance of concern’ and set screening thresholds for those chemicals. This was never explicitly provided in the Section 550 authority used to establish the CFATS though this closely parallels the usage in the current regulations.
Guidance is given to the Secretary in how to select the chemicals and adjust the screening threshold. The Secretary is directed to consider the “potential extent of death, injury, and serious adverse effects to human health, the environment, critical infrastructure, national security, the national economy, and public welfare”. The Secretary still has the responsibility for establishing the rules within those guidelines.
There is an interesting set of word choices in the language in this section. The Secretary “may designate” any chemical substance, but may “establish and revise” the threshold quantity. A strict-constructionist would argue that this means that once a chemical is designated as a chemical of concern, the Secretary does not have the authority to remove that designation.
Covered Facilities
This legislation continues the broad definition of chemical facility promulgated in the current CFATS regulations. Section 2101 (1) defines a chemical facility as any facility at which “a chemical is or may be used, stored, manufactured, processed, or distributed”.
In sub-paragraph ‘b’ of Section 2103 the Secretary is required to maintain a list of ‘covered chemical facilities’ that are of ‘sufficient security risk’ to be included on the list. The legislation provides a general list of criteria to be used to evaluate that risk. Those criteria are:
· “The potential threat or likelihood that the chemical facility will be the target of a chemical facility terrorist incident.”
· “The potential extent and likelihood of death, injury, or serious adverse effects to human health, the environment, critical infrastructure, national security, the national economy, and public welfare that could result from a chemical facility terrorist incident.”
· “The proximity of the chemical facility to population centers.”
The Secretary is also given the authority to require ‘any chemical facility’ to provide information about the “the quantities of substances of concern that are used, stored, manufactured, processed, or distributed’. This information, in essence the current Top Screen, will be used to designate ‘covered’ facilities.
The agricultural community is likely to jump on the last criteria as justification for their exclusion from the regulations. While most agricultural facilities holding hazardous chemicals are removed from ‘population centers’ (and even that is changing) the wording does not require all three criteria be met for each facility included on the list.
Risk Based Tiers
Sub-paragraph ‘c’ requires that the Secretary to place the covered chemical facilities into “one of at least four risk-based tiers”. While this sounds like the current four tier system there is the added requirement that at least one of the tiers “shall be a tier designated for high-risk chemical facilities”. Interestingly, there is no definition of “high-risk chemical facility” provided in the legislation.
This appears to be a significant departure from the requirements in Section 550; there the Secretary only had the authority to regulate chemical facilities at a “high-risk’ of terrorist attack. The wording in this section seems to indicate a clear intent to expand the number of facilities to be included in the list.
The Secretary can require chemical facilities to provide “any additional information” (beyond the inventory information provided to allow the determination of ‘covered facility’) necessary to make the determination of tier-ranking.
The Secretary is required to periodically review the criteria used for listing ‘covered facilities’ and, “may at anytime” change the status of a covered facility (covered or not covered) or to change the tier ranking of the facility. Facilities must be notified of their change in status within 60 days.
Significance of New Rules
This legislation provides a permanent basis for the continuation of the current CFATS regulations in that the Secretary has the authority to determine which chemical facilities will be regulated. The substitution of ‘substance of concern’ for ‘chemical of concern’ should be essentially transparent from a regulatory point of view.
The criteria for risk evaluation are broad enough that current Top Screen procedure should be able to be used without modification. The main difference is that the new legislation does not have a specific provision for the tentative assignment to tiers that the current regulations do. The tentative tiering currently allows lower risk (Tier 4) facilities to use an alternative method for the security vulnerability assessment. That does not appear to be allowed under this legislation.
The biggest change is going from four tiers of high-risk facilities to four tiers of ‘sufficient security risk’ with at least one of those tiers being high-risk. On the face of it, this looks like an expansion of facilities being covered, but it depends on the definition of terms. Neither ‘high-risk’ nor ‘sufficient security risk’ is defined in this legislation.
If the Secretary changes the definition of ‘high-risk’ used in-house to just include the facilities in the Tier 1 (and possibly Tier 2) rankings then the list of all facilities identified as high-risk by the current Top Screen can be called ‘covered facilities’. Unfortunately, there are sure to be a number of people that would object to that as ‘surrendering to industry pressure’ and ‘down grading security’.
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