81 FR 47001 - Chemical Facility Anti-Terrorism Standards

DEPARTMENT OF HOMELAND SECURITY

Federal Register Volume 81, Issue 139 (July 20, 2016)

The U.S. Department of Homeland Security (DHS or Department) is publishing this document to inform the public of the Department's actions to implement an improved tiering methodology for the Chemical Facility Anti-Terrorism Standards (CFATS) program that incorporates the relevant elements of risk mandated by section 2102(e)(2) of title XXI of the Homeland Security Act of 2002 (as amended). Implementation of the improved tiering methodology required changes to an Information Collection Request (ICR), which has recently been approved by the Office of Management and Budget (OMB).

[Federal Register Volume 81, Number 139 (Wednesday, July 20, 2016)]
[Rules and Regulations]
[Pages 47001-47004]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-16776]



========================================================================
Rules and Regulations
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents 
having general applicability and legal effect, most of which are keyed 
to and codified in the Code of Federal Regulations, which is published 
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents. 
Prices of new books are listed in the first FEDERAL REGISTER issue of each 
week.

========================================================================


Federal Register / Vol. 81, No. 139 / Wednesday, July 20, 2016 / 
Rules and Regulations

[[Page 47001]]



DEPARTMENT OF HOMELAND SECURITY

6 CFR Part 27

[Docket No. DHS-2016-0039]


Chemical Facility Anti-Terrorism Standards

AGENCY: Department of Homeland Security.

ACTION: Suspension and modification of certain submission requirements 
for chemical facilities of interest and covered chemical facilities 
under agency regulations.

-----------------------------------------------------------------------

SUMMARY: The U.S. Department of Homeland Security (DHS or Department) 
is publishing this document to inform the public of the Department's 
actions to implement an improved tiering methodology for the Chemical 
Facility Anti-Terrorism Standards (CFATS) program that incorporates the 
relevant elements of risk mandated by section 2102(e)(2) of title XXI 
of the Homeland Security Act of 2002 (as amended). Implementation of 
the improved tiering methodology required changes to an Information 
Collection Request (ICR), which has recently been approved by the 
Office of Management and Budget (OMB).

DATES: This document goes into effect July 20, 2016, or as otherwise 
specified in this document.

FOR FURTHER INFORMATION CONTACT: Jessica Falcon, Chief, Compliance 
Branch, Department of Homeland Security, 245 Murray Lane SW., Mail Stop 
0610, Arlington, VA 20598-0610; Phone: 703-235-5263, Fax: 866-731-2728.

SUPPLEMENTARY INFORMATION: 

I. Background & History

    In December 2014, the President signed into law the Protecting and 
Securing Chemical Facilities from Terrorist Attacks Act of 2014 \1\ or 
``CFATS Act of 2014'' (Pub. L. 113-254, 6 U.S.C. 621, et seq.). The 
CFATS Act of 2014 amended the Homeland Security Act of 2002 \2\ (6 
U.S.C. 101 et seq.) with the addition of Title XXI--Chemical Facility 
Anti-Terrorism Standards--authorizing the Department to regulate 
chemical facilities of interest.\3\
---------------------------------------------------------------------------

    \1\ Public Law 113-254, 128 Stat. 2898, Dec. 18, 2014, is 
available at: https://www.congress.gov/bill/113th-congress/house-bill/4007?q=%7B%22search%22%3A%5B%22HR+4007%22%5D%7D (CFATS Act of 
2014).
    \2\ Public Law 107-296 Stat. 2135, Nov. 25, 2002 is available 
at: https://www.thefederalregister.org/fdsys/pkg/PLAW-107publ296/pdf/PLAW-107publ296.pdf. (Homeland Security Act of 2002)
    \3\ Section 2101(2) of the Homeland Security Act of 2002, as 
enacted on December 18, 2014, defined chemical facility of interest 
as a facility that holds, or that the Secretary has a reasonable 
basis to believe holds, a chemical of interest at a set threshold 
quantity pursuant to relevant risk related security principles and 
is not an excluded facility.
---------------------------------------------------------------------------

    Section 2102(e)(2) of Title XXI of the Homeland Security Act of 
2002 (as amended) requires that the Department incorporate the relevant 
elements of risk in determining the risk of terrorism associated with a 
covered chemical facility.\4\ The improved tiering methodology will 
require the submission by facilities of information that differs in 
some respects from the information that has previously been collected. 
Accordingly, the Department published two notices, one in November 2015 
and one in April of 2016, that requested comments about the recently 
approved ICR for the Chemical Security Assessment Tool (CSAT).\5\ Among 
the approved revisions, the ICR describes a revised Top-Screen that 
will enable the Department to comply with Section 2102(e)(2) of Title 
XXI of the Homeland Security Act of 2002 (as amended).\6\
---------------------------------------------------------------------------

    \4\ Section 2101(3) of the Homeland Security Act of 2002 as 
enacted on December 18, 2014 defined covered chemical facility as a 
chemical facility of interest that based upon a review of the 
facility's top screen meets the risk criteria developed under 
section 2102(e)(2)(B) of the Homeland Security Act of 2002 and is 
not an excluded facility.
    \5\ See https://www.federalregister.gov/articles/2015/11/18/2015-29457/chemical-security-assessment-tool-csat#p-25.
    \6\ The Chemical Security Assessment Tool (CSAT) OMB Information 
Collection Request for 1670-0007 may be viewed at http://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=201604-1670-001.
---------------------------------------------------------------------------

II. Department's Transition to a Revised Top-Screen, Security 
Vulnerability Assessment, and Site Security Plan Applications

    The Department will transition to the revised CSAT Top-Screen 
application, a revised CSAT Security Vulnerability Assessment (SVA) 
application, and a revised CSAT Site Security Plan (SSP) application, 
hereafter described as ``CSAT 2.0''. The Department expects to begin 
collecting information using CSAT 2.0 from chemical facilities of 
interest in the near future using a phased approach.
    The Department considered several alternatives for transitioning 
from the existing CSAT applications to CSAT 2.0 to minimize undue 
effort and unnecessary complexity that could inadvertently cause 
confusion. The Department believes that the actions taken in this 
document represent a reasonable transition process.
    The transition from the existing CSAT applications to CSAT 2.0 will 
be a three-step process. The first step is to temporarily suspend, 
effective July 20, 2016, the requirement for CFATS chemical facilities 
of interest to submit a Top-Screen and SVA. This suspension is designed 
to help chemical facilities of interest avoid expending time and 
resources on Top-Screen and SVA submissions during the transition to 
CSAT 2.0. The Department will continue to allow covered chemical 
facilities to submit new or revised SSPs and Alternative Security 
Programs (ASPs) in lieu of an SSP using the current CSAT SSP 
application up until the date of transition to CSAT 2.0.
    The second step will be to replace the current CSAT Top-Screen, 
SVA, and SSP applications with CSAT 2.0 (i.e., the revised CSAT Top-
Screen, SVA, and SSP applications). The Department currently plans to 
take this step in September 2016. Soon after transitioning to CSAT 2.0, 
the Department will, in a phased approach, begin individually notifying 
chemical facilities of interest to submit a Top-Screen using the 
revised CSAT Top-Screen application. Notification will be sent to 
facilities that either (a) have previously submitted a Top-Screen with 
COI above the STQ, or (b) the Department has reason to believe have COI 
at or above the STQ. Section III and IV of this document describe which 
chemical facilities of interest will and

[[Page 47002]]

will not be required to submit a Top-Screen.
    The third step will be to reinstate the Top-Screen and SVA 
submission requirements in 6 CFR 27.210(a) on October 1, 2016.

III. Facilities That Will Be Required To Submit a Top-Screen

    After the transition to CSAT 2.0, the Department will begin 
individually notifying chemical facilities of interest (to include 
facilities previously determined not to be high-risk), unless otherwise 
described in Section IV of this document, to submit a Top-Screen using 
the revised CSAT Top-Screen application. The Department will send a 
specific written notification in this regard, pursuant to its authority 
under 6 CFR 27.210(a)(1)(ii). These letters will be issued in a phased 
manner over the course of several months.
    A facility that does not possess any chemical of interest (COI) at 
or above the Screening Threshold Quantity (STQ) and as applicable, at 
or above the minimum concentration specified in Appendix A will not 
need to submit a Top-Screen. However, any such facility, if provided 
with written notice to submit a Top-Screen, must notify the Department 
why it is not submitting a Top-Screen. Notification may be done either 
by (a) accessing CSAT and submitting a Top-Screen with no COI selected 
\7\ or (b) by sending a letter or fax to the contact listed in the 
contact section of this document.
---------------------------------------------------------------------------

    \7\ It is common practice for a covered chemical facility that 
no longer possesses COI at or above the (STQ) and at or above the 
minimum concentration specified in Appendix A to submit a revised 
Top-Screen with no COI selected. Upon receiving the revised Top-
Screen and confirming the information, the Department determines the 
facility no longer is a high risk chemical facility.
---------------------------------------------------------------------------

    A covered chemical facility does not have to wait for written 
notification from the Department to submit a Top-Screen after the 
Department transitions to CSAT 2.0. A covered chemical facility may 
find it advantageous to submit a Top-Screen prior to receiving specific 
notification from the Department if it believes its tier might be 
lowered under the improved tiering methodology.
    Chemical facilities of interest that come into reportable amounts 
of COI listed on Appendix A during the temporary suspension must submit 
a Top-Screen within 60 days of reinstatement. The reinstatement of the 
submission requirements also means that chemical facilities of interest 
that either: (a) Come into possession of reportable amounts of COI 
listed on Appendix A after the reinstatement of submission, or (b) have 
not complied with the existing reporting requirement since November 20, 
2007 have an obligation to submit a Top-Screen within 60 days of 
reinstatement.

IV. Facilities That Will Not Be Required To Submit a Top-Screen

    If a facility described below receives a notification letter 
directing it to submit a Top-Screen, it should contact the Department 
for further guidance--using either the contact information contained in 
the contact section of this document or by contacting the CFATS 
Helpdesk.\8\
---------------------------------------------------------------------------

    \8\ The CFATS Helpdesk may be contacted at 866-323-2957 Monday 
through Friday from 8:30 a.m. to 5:00 p.m. (EST). The CFATS Helpdesk 
is closed on Federal Holidays.
---------------------------------------------------------------------------

A. Agricultural Production Facilities and Miscellaneous Extensions

    This document does not modify the existing Top-Screen submission 
extension applicable to Agricultural Production Facilities that use COI 
in preparation for the treatment of crops, feed, land, livestock 
(including poultry), or other areas of an Agricultural Production 
Facility or during application to or treatment of crops, feed, land, 
livestock (including poultry), or other areas of the facility.\9\ 
Similarly, this document does not modify any other extension issued by 
the Department for submitting a Top-Screen.
---------------------------------------------------------------------------

    \9\ The Department of Homeland Security published a letter that 
it issued on December 21, 2007. Through this letter, the Department 
granted a time extension for farmers and other agricultural end-
users who would otherwise have been required to submit a Top-Screen 
consequence assessment through the secure online CSAT Top-Screen. 
See 73 FR 1640, Jan. 9, 2008 is available at https://federalregister.gov/a/E8-199.
---------------------------------------------------------------------------

B. Chemical Facilities of Interest With Reportable COI That Is Present 
in a Gasoline Mixture

    The Department's practice has been to indefinitely extend the due 
dates for submission of Top-Screens, and as applicable SVAs and SSPs, 
for chemical facilities of interest whose only reportable COI is 
present in a gasoline mixture. Nothing in this document is intended to 
alter that practice; however, chemical facilities of interest that 
reported or have come into possession of one or more COI above the STQ 
in addition to the COI present in gasoline will be required to submit a 
Top-Screen in the revised CSAT Top-Screen application for that COI. The 
Department does not intend to send written notifications requesting 
revised Top-Screens from facilities that have previously submitted a 
Top-Screen with only COI present in gasoline.

C. Statutorily Excluded Facilities

    Facilities that are statutorily excluded from CFATS are not 
required to submit a Top-Screen, and the Department does not intend to 
send written notifications requesting statutorily-excluded facilities 
to submit a Top-Screen.\10\
---------------------------------------------------------------------------

    \10\ Section 2101(4) of the Homeland Security Act of 2002, as 
enacted on December 18, 2014 defined excluded facility as: (A) A 
facility regulated under the Maritime Transportation Security Act of 
2002 (Pub. L. 107-295; 116 Stat. 2064); (B) a public water system, 
as that term is defined in section 1401 of the Safe Drinking Water 
Act (42 U.S.C. 300f); (C) a Treatment Works, as that term is defined 
in section 212 of the Federal Water Pollution Control Act (33 U.S.C. 
1292); (D) a facility owned or operated by the Department of Defense 
or the Department of Energy; or (E) a facility subject to regulation 
by the Nuclear Regulatory Commission, or by a State that has entered 
into an agreement with the Nuclear Regulatory Commission under 
section 274 b. of the Atomic Energy Act of 1954 (42 U.S.C. 2021(b)) 
to protect against unauthorized access of any material, activity, or 
structure licensed by the Nuclear Regulatory Commission.
---------------------------------------------------------------------------

D. Untiered Facilities That Previously Notified the Department They Had 
No Reportable COI

    The Department does not intend to require untiered facilities that 
previously submitted a Top-Screen with no COI selected to submit 
another Top-Screen; however, the Department does expect such facilities 
to submit a Top-Screen if they have come into possession of a 
reportable amount of COI since submitting their previous Top-Screen.

V. Unsubmitted SVAs and SSPs in the Current CSAT SVA and SSP 
Applications

    The Department notes that (a) some SVAs that have been initiated in 
the current CSAT SVA application have not yet been submitted, and 
similarly that (b) some SSPs that have been initiated in the current 
CSAT SSP application have not yet been submitted. Only complete and 
submitted SVAs and complete and submitted SSPs will be retained in CSAT 
2.0.\11\
---------------------------------------------------------------------------

    \11\ A covered chemical facility that would like to preserve 
information within the current CSAT SSP application prior to the 
transition to CSAT 2.0 may consider generating a PDF of the 
partially SSP.
---------------------------------------------------------------------------

    Upon transitioning to CSAT 2.0, the Department will delete any 
partially completed SVA (i.e., unsubmitted SVA) found in the current 
CSAT SVA application. Any covered chemical facility that has either (a) 
an unsubmitted SVA within the current CSAT SVA application or (b) has 
submitted an SVA but not received a final tier determination based on 
its most recent SVA submission, will

[[Page 47003]]

receive written notification from the Department to submit a Top-Screen 
using the revised CSAT Top-Screen application.
    Upon transitioning to CSAT 2.0, the Department will delete any 
partially completed SSP (i.e., unsubmitted SSPs) in the current CSAT 
SSP application. This means that if a covered chemical facility has not 
submitted its SSP prior to the transition to CSAT 2.0, any data in its 
partially completed SSP (i.e., unsubmitted SSP) within the current CSAT 
SSP application will be deleted and will no longer be retrievable. Any 
data from a SSP previously submitted through the current CSAT SSP 
application will be available and pre-populated in CSAT 2.0.

VI. Changes to Submission Schedule for SVAs and SSPs

A. Impacts to ``Initial Submission'' Schedule at 6 CFR 27.210(a)

    As described in the November 2015 CSAT ICR Notice, the Department 
expects that because of the revisions in CSAT 2.0:
     Chemical facilities will spend 90 percent less time logged 
into the SVA application, and
     Chemical facilities will spend 70 percent less time logged 
into the SSP application.
    Furthermore, as mentioned in the November 2015 CSAT ICR Notice one 
of the expected outcomes of the revisions is a greater confidence in 
the tiering results conducted after the Top-Screen. Hence, while the 
Department reserves the right to modify a facility's tier following 
review of the facility's SVA, generally speaking, the Department will 
rely on the information submitted in a facility's Top-Screen to make a 
single tiering determination for the facility, as described in 6 CFR 
27.220(a). The Department will indicate confirmation of or, in 
extremely rare cases, alteration of, the facility's tier in a Letter of 
Authorization (or, in the case of a facility electing to submit an SSP 
under the Expedited Approval Program, a Letter of Acceptance).
    In large part due to (a) the Department's reliance on a single 
tiering determination based on a facility's Top-Screen, and (b) an 
improved integration between the CSAT SVA application and the CSAT SSP 
application, the revised CSAT SVA application and revised CSAT SSP 
application have been designed to be completed and submitted together. 
The Department also believes that the revised CSAT SVA application 
aligns substantially better with 6 CFR 27.215 (the requirements of an 
SVA) compared to the current CSAT SVA application. Therefore, the 
Department, in this document, is streamlining the submission 
requirements to align with the revised CSAT SVA application and revised 
CSAT SSP application efficiencies described in the CSAT ICR by aligning 
the submission requirements and having them run in parallel. Based on 
these changes, the SVA start date and due date will be the same as the 
SSP start date and due date, respectively. Specifically, in this 
document, the Department is using its authorities:
     Under 6 CFR 27.210(a)(2), when the Department transitions 
to CSAT 2.0, to require covered chemical facilities to submit their 
initial SVA within 120 days of written notification of the Department's 
determination under 6 CFR 27.205(a) that they are high-risk.
     under 6 CFR 27.210(a)(3), when the Department transitions 
to CSAT 2.0, to require covered chemical facilities to submit their 
initial SSP within 120 days of written notification of the Department's 
determination under 6 CFR 27.205(a) that they are high-risk.
    Therefore, the deadline for a covered chemical facility to submit 
an initial SVA and an initial SSP will be 120 days after the 
Department's tiering determination described in 6 CFR 27.205(a). 
Facilities may request extensions to the due dates for the SVA and SSP. 
All requests will be considered by the Department on a case by case 
basis.

B. Impacts to ``Resubmission Schedule for Covered Facilities'' at 6 CFR 
27.210(b)

    As previously explained, the Department expects to maintain the 
ability to have data from the most recently submitted CSAT SSP pre-
populate into an SSP that will be available in the CSAT 2.0 SSP 
application. As a result, after the transition to CSAT 2.0, covered 
chemical facilities that need to revise their SSPs will need to (a) 
review a pre-populated SSP for completeness and accuracy; and (b) make 
any necessary updates or corrections to their SSP before submission 
using the revised CSAT SSP application. Because the new CSAT 2.0 design 
contemplates the submission of the SVA and SSP together, covered 
chemical facilities will also be required to revise their SVAs if/when 
they revise their SSPs. Furthermore, the start date and due date for a 
revised SVA will be the same as the start date and due date, 
respectively, for the covered chemical facility's revised SSP. Covered 
chemical facilities will be required to submit revised SVAs and revised 
SSP within 30 days of written notification from the Department. The 
Department selected the 30 day deadline because it has been allowing 
covered chemical facilities 30 days to complete revisions to their SVAs 
and SSPs for the past several years and found that it is a sufficient 
amount of time for most facilities. The Department will consider 
requests for extensions to the due dates for revised SVAs and SSPs.

VII. Additional Considerations for Chemical Facilities of Interest

A. Inactive CSAT User Accounts

    Many chemical facilities of interest previously determined not to 
be high risk will need to reactivate the CSAT account(s) of their 
designated representative(s) or register a new representative. All 
chemical facilities of interest affected by this document, in 
particular chemical facilities of interest previously determined not to 
be high risk, should verify what, if any, steps they need to take in 
order to ensure that an appropriate representative has an active CSAT 
account. For assistance on how to reactivate a CSAT account please 
contact the CFATS Help Desk. Information about how to register for a 
new CSAT account can be found on the CFATS Knowledge Center at 
www.dhs.gov/chemicalsecurity.

B. Need for Chemical-Terrorism Vulnerability Information (CVI) 
Certification

    To access CSAT, a CSAT User must be a Chemical-terrorism 
Vulnerability Information (CVI) authorized user. CSAT Users, in 
particular CSAT users affiliated with chemical facilities of interest 
previously determined not to be high risk, may need to complete CVI 
training and apply to be a CVI Authorized User prior to their ability 
to access CSAT. To verify your status as a CVI Authorized User you may 
contact the CFATS Helpdesk.

VIII. Regulatory Actions This Document Exercises Under Part 27 of Title 
6, Code of Federal Regulations

    This document exercises the following regulatory actions:
     Temporarily suspends the requirement to submit a Top-
Screen and SVA on July 20, 2016. The Department is authorized to take 
this action under Sec.  27.210(a)(1)(ii) and (a)(2) of part 27 of title 
6, Code of Federal Regulations.
     Notifies the public that when the Department transitions 
to CSAT 2.0, a covered chemical facility will be required to submit its 
initial SVA within 120 days of notification of the Department's 
determination under 6 CFR 27.205(a) that they are high-risk.

[[Page 47004]]

The Department is authorized to take this action under Sec.  
27.210(a)(2) of part 27 of title 6, Code of Federal Regulations.
     Notifies the public that when the Department transitions 
to CSAT 2.0, a covered chemical facility will be required to submit its 
initial SSP within 120 days of notification of the Department's 
determination under 6 CFR 27.205(a) that they are high-risk. The 
Department is authorized to take this action under Sec.  27.210(a)(3) 
of part 27 of title 6, Code of Federal Regulations.
     Notifies the public that when the Department transitions 
to CSAT 2.0, covered chemical facilities seeking to revise an SSP will 
also be required to revise their SVA. The Department is authorized to 
take this action under Sec.  27.210(b)(2) of part 27 of title 6, Code 
of Federal Regulations.
     Notifies the public that when the Department transitions 
to CSAT 2.0, a covered chemical facility submitting a revised SVA will 
have 30 days to submit its revised SVA. The Department is authorized to 
take this action under Sec.  27.210(a)(2) of part 27 of title 6, Code 
of Federal Regulations.
     Notifies the public that when the Department transitions 
to CSAT 2.0, a covered chemical facility submitting a revised SSP will 
have 30 days to submit its revised SSP. The Department is authorized to 
take this action under Sec.  27.210(a)(3) of part 27 of title 6, Code 
of Federal Regulations.
     Notifies the public of the reinstatement of the Top-Screen 
and SVA submission requirements on October 1, 2016. This means that 
chemical facilities of interest that acquire reportable amounts of COI 
listed on Appendix A after the reinstatement of the requirement to 
submit a Top-Screen and SVA must submit a Top-Screen within 60 days. 
The reinstatement of the submission requirements also means that 
chemical facilities of interest that have not complied with the 
existing reporting requirement since November 20, 2007 must also submit 
a Top-Screen with 60 days. The Department is authorized to take this 
action under Sec.  27.210(a)(1)(ii) and (a)(2) of part 27 of title 6, 
Code of Federal Regulations.
     Notifies the public that a chemical facility of interest 
will have 60 days following the reinstatement of the submission 
requirements under 6 CFR 27.210(a) to submit a Top-Screen if the 
chemical of facility of interest have come into possession of a 
reportable amount of COI after July 20, 2016 but before reinstatement 
of the submission requirements. The Department is authorized to take 
this action under Sec.  27.210(a)(1)(ii) of part 27 of title 6, Code of 
Federal Regulations.
    This document does not require chemical facilities to immediately 
submit a Top-Screen after the transition to the revised CSAT Top-Screen 
application. Rather, this document publicizes the Department's intent 
to begin individually notifying chemical facilities of interest. After 
the transition to CSAT 2.0, the Department will begin sending written 
notification to chemical facilities of interest requiring them to 
submit a Top-Screen using the revised CSAT Top-Screen application. 
Finally, the Department (1) reemphasizes that once the Department 
transitions to CSAT 2.0, any chemical facility of interest can submit a 
Top-Screen using the revised CSAT Top-Screen application, regardless of 
whether it has received written notification from the Department, and 
(2) continues to be available for consultation to any chemical facility 
of interest before, during, or after the transition to CSAT 2.0. In 
particular the Department is available for consultation to any chemical 
facilities of interest that acquire COI for the first time. Requests 
for consultation can be made through the CFATS Helpdesk.
    Taken together the process and steps outlined in this document will 
enable the Department to collect the necessary information to implement 
the improved tiering methodology required in Section 2102(e)(2) of the 
Homeland Security Act of 2002.

    Dated: July 11, 2016.
David M. Wulf,
Director, Infrastructure Security Compliance Division, Office of 
Infrastructure Protection, National Protection and Programs 
Directorate, Department of Homeland Security.
[FR Doc. 2016-16776 Filed 7-19-16; 8:45 am]
 BILLING CODE 9110-9P-P