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Chemical Facility Anti-Terrorism Standards (6 CFR Part 27)
On April 9, 2007 the Department of Homeland Security (DHS) published the Final Interim Rule on Chemical Facility Anti-Terrorism Standards (6 CFR part 27) in the Federal Register. The rule goes into effect in on June 8, 2007 and the Secretary of DHS will, on that date, be able to direct individual, or classes of, chemical facilities to initiate actions under that rule. An appendix to that Rule, Appendix A, DHS Chemicals of Interest, was also published on that day for public comment (Docket 2006-0073). The comment period ends on May 9, 2007 and it appears that DHS intends to publish the final version on June 8th of this year.
Within 60 days of the publishing of the final version of Appendix A, the final rule goes completely into effect. Starting on that date all chemical facilities that have, or expect to have on site at least the Screening Threshold Quantity (STQ) found in Appendix A of any of the more than 300 chemicals listed will be required to provide to DHS information on their chemical facilities, the chemicals used there, and the potential consequences of an attack on the facility. This information will be provided through an Internet utility called the Top Screen. Each facility will have 60 days in which to complete this requirement.
DHS will utilize this information to:
1. Determine if the facility is a ?high-risk chemical
facility? that would have further responsibilities
under 6 CFR part 27, and
2. If determined to be a high-risk chemical facility,
preliminarily assign the facility to one of four
tiers that will determine the levels of protection
required to meet federal security guidelines under
6 CFR part 27, and
3. Notify the high-risk facility of deadlines to
complete the next step in the process, the
Security Vulnerability Assessment.
DHS estimates that more than 6,000 facilities will be covered by the requirement to complete a Top Screen submission. Of those, they expect between 1,500 and 6,000 will be required to take further actions under this new regulation. The highest risk facilities, Tier 1, will be required to complete the designated actions sooner than the lower, high risk facilities. Between 36 and 42% of these facilities are expected to be 'small entities' under the Small Business Administration's rules.
Once DHS evaluates the information provided in the Top Screen, they will notify facilities which of four tiers they have been assigned for the purposes of preparation of a Security Vulnerability Assessment. Those not assigned to one of the four tiers are not considered to be a 'high risk facility' and will not be governed by the other requirements of this regulation. DHS encourages facilities not designated high risk facilities to consider using the methodologies outlined in this regulation to implement their own security programs.
The three highest risk tiers (tiers 1, 2, and 3) will be required to perform a Security Vulnerability Assessment (SVA) within 90 days of their notification. The results of this SVA will be required to be entered into the DHS on-line Chemical Security Assessment Tool (CSAT) so that DHS can make a final determination of their Tier ranking. Those facilities notified that they were preliminarily assigned a Tier 4 (lowest high-risk rating) will have the option of filing an already prepared vulnerability assessment (VA) in lieu of performing a new SVA and requesting DHS approval of that VA as an Alternate Security Plan (ASP). DHS may approve the ASP as long as it meets the criteria of the Center for Chemical Process Safety (CCPS) for an SVA (Section 2.5, Guidelines for Analyzing and Managing the Security Vulnerabilities of Fixed Chemical Sites, CCPS, 2003).
Once DHS approves the SVA, facilities in all four tiers will have 120 days to complete a Site Security Plant (SSP). The key point for the SSP is that it must specifically address all of the security problems noted in the SVA and address each of the Department's nineteen Risk Based Performance Standards. Once the submitted SSP is approved via a Letter of Authorization, DHS will inspect the facility to insure that its SSP is being effectively implemented before DHS issues it Letter of Approval of the SSP.
One of the more controversial elements of the Risk Based Performance Standards is the requirement for employee background checks as part of the Personal Surety Standard. As part of the SSP the facility will have to identify critical assets and restricted areas as appropriate. Employees, contractors, and visitors with unaccompanied access to these areas will be required to be identified in the SSP. These personnel will be required to have under gone a background check that, at a minimum:
1. Verifies and validates identity, and
2. Completes a criminal history check of publicly or
commercially available databases, and
3. Verifies and validates legal authorization to work
via the I9 process, and
4. Includes measures to identify personnel with
terrorist ties.
DHS has made clear that current or even long time employees cannot be grandfathered around this requirement. It has also reiterated that conviction for a misdemeanor offense does not necessarily preclude someone from authorized unaccompanied access in a high risk chemical facility. Personnel with current screening documentation under another DHS program will be deemed appropriately screened; they will still have to be identified in the SSP. DHS will establish procedures for submitting names for the performance of the checks for personnel with terrorist ties as these checks will be done by DHS.
There are provisions for the protection of any information submitted to DHS in support of this regulation. Any information submitted will be protected as CVI (Chemical-terrorism Vulnerability Information) and disseminated only to personnel on a need to know basis. The protections required for this information parallel the requirements for classified defense information.
The new regulation establishes authority to issue orders to insure compliance. These orders may be enforced by fines of up to $25,000 per day and potentially government closure of the facility. An appeals process has been established for the designation as a high risk facility, assignment to tiers, disapproval of SVA, SSP or ASP, orders, fines or facility closure.
This new regulation will put extensive security requirements on a large number of chemical facilities that have never been covered under government security guidelines before. A great deal of work by both the private sector and the government will have to be done before all of the high risk chemical facilities in the United States can be brought up to the standards of these requirement.
Within 60 days of the publishing of the final version of Appendix A, the final rule goes completely into effect. Starting on that date all chemical facilities that have, or expect to have on site at least the Screening Threshold Quantity (STQ) found in Appendix A of any of the more than 300 chemicals listed will be required to provide to DHS information on their chemical facilities, the chemicals used there, and the potential consequences of an attack on the facility. This information will be provided through an Internet utility called the Top Screen. Each facility will have 60 days in which to complete this requirement.
DHS will utilize this information to:
1. Determine if the facility is a ?high-risk chemical
facility? that would have further responsibilities
under 6 CFR part 27, and
2. If determined to be a high-risk chemical facility,
preliminarily assign the facility to one of four
tiers that will determine the levels of protection
required to meet federal security guidelines under
6 CFR part 27, and
3. Notify the high-risk facility of deadlines to
complete the next step in the process, the
Security Vulnerability Assessment.
DHS estimates that more than 6,000 facilities will be covered by the requirement to complete a Top Screen submission. Of those, they expect between 1,500 and 6,000 will be required to take further actions under this new regulation. The highest risk facilities, Tier 1, will be required to complete the designated actions sooner than the lower, high risk facilities. Between 36 and 42% of these facilities are expected to be 'small entities' under the Small Business Administration's rules.
Once DHS evaluates the information provided in the Top Screen, they will notify facilities which of four tiers they have been assigned for the purposes of preparation of a Security Vulnerability Assessment. Those not assigned to one of the four tiers are not considered to be a 'high risk facility' and will not be governed by the other requirements of this regulation. DHS encourages facilities not designated high risk facilities to consider using the methodologies outlined in this regulation to implement their own security programs.
The three highest risk tiers (tiers 1, 2, and 3) will be required to perform a Security Vulnerability Assessment (SVA) within 90 days of their notification. The results of this SVA will be required to be entered into the DHS on-line Chemical Security Assessment Tool (CSAT) so that DHS can make a final determination of their Tier ranking. Those facilities notified that they were preliminarily assigned a Tier 4 (lowest high-risk rating) will have the option of filing an already prepared vulnerability assessment (VA) in lieu of performing a new SVA and requesting DHS approval of that VA as an Alternate Security Plan (ASP). DHS may approve the ASP as long as it meets the criteria of the Center for Chemical Process Safety (CCPS) for an SVA (Section 2.5, Guidelines for Analyzing and Managing the Security Vulnerabilities of Fixed Chemical Sites, CCPS, 2003).
Once DHS approves the SVA, facilities in all four tiers will have 120 days to complete a Site Security Plant (SSP). The key point for the SSP is that it must specifically address all of the security problems noted in the SVA and address each of the Department's nineteen Risk Based Performance Standards. Once the submitted SSP is approved via a Letter of Authorization, DHS will inspect the facility to insure that its SSP is being effectively implemented before DHS issues it Letter of Approval of the SSP.
One of the more controversial elements of the Risk Based Performance Standards is the requirement for employee background checks as part of the Personal Surety Standard. As part of the SSP the facility will have to identify critical assets and restricted areas as appropriate. Employees, contractors, and visitors with unaccompanied access to these areas will be required to be identified in the SSP. These personnel will be required to have under gone a background check that, at a minimum:
1. Verifies and validates identity, and
2. Completes a criminal history check of publicly or
commercially available databases, and
3. Verifies and validates legal authorization to work
via the I9 process, and
4. Includes measures to identify personnel with
terrorist ties.
DHS has made clear that current or even long time employees cannot be grandfathered around this requirement. It has also reiterated that conviction for a misdemeanor offense does not necessarily preclude someone from authorized unaccompanied access in a high risk chemical facility. Personnel with current screening documentation under another DHS program will be deemed appropriately screened; they will still have to be identified in the SSP. DHS will establish procedures for submitting names for the performance of the checks for personnel with terrorist ties as these checks will be done by DHS.
There are provisions for the protection of any information submitted to DHS in support of this regulation. Any information submitted will be protected as CVI (Chemical-terrorism Vulnerability Information) and disseminated only to personnel on a need to know basis. The protections required for this information parallel the requirements for classified defense information.
The new regulation establishes authority to issue orders to insure compliance. These orders may be enforced by fines of up to $25,000 per day and potentially government closure of the facility. An appeals process has been established for the designation as a high risk facility, assignment to tiers, disapproval of SVA, SSP or ASP, orders, fines or facility closure.
This new regulation will put extensive security requirements on a large number of chemical facilities that have never been covered under government security guidelines before. A great deal of work by both the private sector and the government will have to be done before all of the high risk chemical facilities in the United States can be brought up to the standards of these requirement.
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