These are the rules and Federal Register notices regarding the requirements in the Chemical Facility Anti-Terrorism Standards (CFATS) program managed by the Cybersecurity and Infrastructure Security Agency (CISA).
Chemical Facility Anti-Terrorism Standards (6 CFR part 27), Interim Final Rule
Published April 9, 2007. After gathering and incorporating comments from individuals, trade associations, companies, and numerous other entities, the CFATS regulation was published as an Interim Final Rule. Section 550 of the Homeland Security Appropriations Act of 2007 provided the Department with authority to promulgate “interim final regulations” for the security of certain chemical facilities in the United States. This rule establishes risk-based performance standards for the security of our Nation's chemical facilities, allows certain covered chemical facilities, in specified circumstances, to submit Alternative Security Programs (ASPs), and provides the Department with authority to seek compliance through the issuance of Orders, including Orders Assessing Civil Penalty and Orders for the Cessation of Operations.
Appendix [A] to the Chemical Facility Anti-Terrorism Standard, Final Rule
Published November 20, 2007. This list consists of approximately 300 chemicals of interest (COI) and their individual screening threshold quantities (STQ) and concentrations. Any facility that possesses an Appendix A COI in a quantity at or above the listed STQ and concentration for any period of time is covered by the standard and must submit a Top-Screen within 60 calendar days.
Notices That Have Material Effect on the Implementation of CFATS
These notices resulted in changes to how the program was implemented but did not revise the regulatory text at 6 CFR part 27.
Agricultural Facilities Time Extension Notification
Published on January 9, 2008. The Department 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 through the secure online Chemical Security Assessment Tool (CSAT).
Clarification to Chemical Facility Anti-Terrorism Standards: Propane
Published on March 21, 2008. This notice clarifies how certain provisions of CFATS apply to the chemical of interest (COI) propane, which is understood by the Department to contain at least 87.5% of the chemical propane. Specifically, this notice clarifies the STQ and counting rules that apply to the COI propane.
Risk-Based Performance Standards Guidance
Published on May 15, 2009. This guidance provides the Department’s interpretation of the level of performance facilities should strive to achieve under each Risk-Based Performance Standard (RBPS). It also helps facilities comply with CFATS by describing in greater detail the 18 RBPSs enumerated in CFATS, by providing examples of various security measures and practices that could be selected to achieve the desired level of performance for each RBPS at each of the risk-based tiers created by CFATS. A draft of the RBPS Guidance was published in the Federal Register on October 27, 2008. The Department invited public comment on the draft Risk-Based Performance Standards Guidance. The comment period was open through November 26, 2008.
Chemical Facility Anti-Terrorism Standards: Guidance for the Expedited Approval Program
Published May 13, 2015. This guidance complies with a provision within the Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2014 requiring DHS to issue guidance for the newly established Expedited Approval Program (EAP), which provides a voluntary option for high-risk chemical facilities assigned a final tier level of 3 or 4 to develop and submit Site Security Plans (SSPs) for expedited approval. This guidance identifies the specific security measures sufficient to meet risk-based performance standards for facilities that choose to submit an SSP under the EAP.
Implementation of the CFATS Personnel Surety Program
Published on December 18, 2015. DHS informed Tier 1 and Tier 2 high-risk chemical facilities covered under CFATS of the implementation of the Personnel Surety Program (PSP). The notice provides information on statutory and regulatory history, options available for compliance, program requirements and details, Chemical Security Assessment Tool user roles and responsibilities, and privacy considerations. The Agency subsequently announced the implementation of the Personnel Surety Program (PSP) at all covered chemical facilities—including Tier 3 and Tier 4 facilities—in a noticed published on July 9, 2019. The full implementation of the CFATS Personnel Surety Program closed the final gap in vetting individuals with access to critical assets and restricted areas for terrorist ties. High-risk chemical facilities that have an approved security plan, but have not yet included measures to comply with Risk-Based Performance Standard (RBPS) 12(iv), will be notified by the Agency in a phased manner of the need to update their security plans with measures to identify individuals for terrorist ties.
CFATS Suspension and Modification of Certain Submission Requirements
Published on July 20, 2016. This notice informed the public of the Department’s actions to implement an improved tiering methodology for the 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). The notice temporarily suspended and modified certain submission requirements for chemical facilities of interest and covered chemical facilities. Implementation of the improved tiering methodology required changes to a Chemical Security Assessment Tool (CSAT) Information Collect Request (ICR) published on July 14, 2016.
Notices That Are Part of the Rulemaking Process
These notices were published as a part of the regulatory process and in compliance with the Administrative Procedures Act. While these notices are not final actions that resulted in revisions to the regulatory text at 6 CFR part 27, they are important milestone documents that contain a record of the Agency’s consideration about the design and structure of CFATS.
Notices Prior to the Promulgation of the CFATS Final Rule
Advance Notice of Proposed Rulemaking (ANPRM): Chemical Facility Anti-Terrorism Standards (2006)
Published on December 28, 2006. Section 550 of the Homeland Security Appropriations Act of 2007 provided the Department with authority to promulgate “interim final regulations” for the security of certain chemical facilities in the United States. The Department developed and published this ANPRM, indicating that a new standard was under development and requesting public comments on the proposed rule. The comment period was open through February 7, 2007.
CFATS Regulatory Assessment
Posted to the CFATS Interim Final Rule (IFR) docket on April 9, 2007. This regulatory assessment was prepared in order to estimate the magnitude of cost chemical facility owners and/or operators would incur implementing the CFATS IFR.
Notices After the Promulgation of the CFATS Final Rule
CFATS Advance Notice of Proposed Rulemaking (ANPRM) (2014)
Published on August 18, 2014. DHS initiated this rulemaking process as a step toward maturing the CFATS program and to identify ways to make the program more effective in achieving its regulatory objectives. This ANPRM provided an opportunity for the Department to hear and consider the views of interested members of the public, including regulated industry, on their recommendations for program modifications that could be incorporated into an updated CFATS regulation. The comment period was open through October 17, 2014.
CFATS Appendix A Notice of Public Meeting
In support of the 2014 CFATS ANPRM, DHS published a notice on October 16, 2015, that invited public comment and recommendations on how the Appendix A chemicals of interest (COI) list in the CFATS regulations may be improved. Along with the collection of written comments specific to Appendix A, DHS hosted a roundtable discussion and listening session on October 27, 2015.
Retrospective Analysis of the Chemical Facility Anti-Terrorism Standards
Posted to the CFATS 2014 Advance Notice of Proposed Rulemaking (ANRPM) docket on June 22, 2020. To better understand the actual costs of security requirements under the CFATS program and how those costs are distributed across the regulated community, the Agency conducted a retrospective analysis of the CFATS program based on observed data from more than 10 years of CFATS compliance. The retrospective analysis revealed that the actual costs of the CFATS program on chemical facilities is significantly lower (83 percent) than was initially projected in the 2007 Regulatory Assessment. The comment period for the Retrospective Analysis was open through September 21, 2020.
Removal of Certain Explosive Chemicals from the Chemical Facility Anti-Terrorism Standards
Published on January 6, 2021. As part of CISA’s commitment to ongoing evaluation of the CFATS program, CISA published a notice in the Federal Register soliciting public comment on an advance notice of proposed rulemaking (ANPRM) that considers removing 49 Class 1, Division 1.1 explosive chemicals from the list of regulated chemicals of interest (COI) in Appendix A of the CFATS regulation. The ANPRM is open for comment for 60 days to March 8, 2021.
DHS Requested Comments on CFATS Regulatory Provisions for Aboveground Gasoline Storage Tanks
Published on January 15, 2010. The Department invited public comment on issues related to certain regulatory provisions in CFATS that apply to facilities that store gasoline in aboveground storage tanks. The comment period was open through March 16, 2010.
Other Notices Related to CFATS
Chemical Security Assessment Tool (CSAT) Registration Reminder
Published on April 25, 2007. The Department published a notice that recommended chemical facilities register to access the CSAT system. This is a voluntary registration process for facilities that think they may be covered by the Department’s CFATS program (6 CFR part 27) and that want to initiate the process to determine whether or not they are covered by 6 CFR part 27.
Notices Regarding Civil Monetary Penalty Adjustments for Inflation
On November 2, 2015, the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 was signed into law (Pub. L. 114-74 section 701 (Nov. 2, 2015)) (2015 Act). The 2015 Act amended the Federal Civil Penalties Inflation Adjustment Act of 1990 (28 U.S.C. 2461) to improve the effectiveness of civil monetary penalties and to maintain their deterrent effect. The 2015 Act required agencies to (1) adjust the level of civil monetary penalties with an initial “catch-up” adjustment through issuance of an Interim Final Rule (IFR) and (2) make subsequent annual adjustments for inflation. Through the “catch-up” adjustment, agencies were required to adjust the maximum amounts of civil monetary penalties to more accurately reflect inflation rates.
CISA administers only one civil penalty that the 2015 Act affects. That penalty assesses fines for violations of the CFATS regulation which is outlined at 6 CFR 27.300(b)(3). See the CFATS Enforcement webpage for more information.
Beginning in 2016, these annual notices result in revisions to the maximum penalty at 6 CFR 27.300(b)(3).
Civil Monetary Penalty Adjustments for Inflation (81 FR 42987)
Published on July 1, 2016. This final rule revised 6 CFR 27.300(b)(3) by increasing the maximum per day penalty from $25,000 to $32,796 per day for new penalties assessed after August 1, 2016, whose associated violations occurred after November 2, 2015.
Civil Monetary Penalty Adjustments for Inflation (82 FR 8571)
Published on January 27, 2017. This final rule revised 6 CFR 27.300(b)(3) by increasing the maximum per day penalty from $32,796 to $33,333 per day for new penalties assessed after January 27, 2017, whose associated violations occurred after November 2, 2015.
Civil Monetary Penalty Adjustments for Inflation (83 FR 13826)
Published on April 2, 2018. This final rule revised 6 CFR 27.300(b)(3) by increasing the maximum per day penalty from $33,333 to $34,013 per day for new penalties assessed after April 2, 2018, whose associated violations occurred after November 2, 2015.
Civil Monetary Penalty Adjustments for Inflation (84 FR 13499)
Published on April 5, 2019. This final rule revised 6 CFR 27.300(b)(3) by increasing the maximum per day penalty from $34,013 to $34,871 per day for new penalties assessed after April 5, 2019, whose associated violations occurred after November 2, 2015.
Civil Monetary Penalty Adjustments for Inflation (85 FR 36469)
Published on June 17, 2020. This final rule revised 6 CFR 27.300(b)(3) by increasing the maximum per day penalty from $34,871 to $35,486 per day for new penalties assessed after June 17, 2020, whose associated violations occurred after November 2, 2015.