E8-25596. National Protection and Programs Directorate; Notice of Availability of Risk-Based Performance Standards Guidance for the Chemical Facility Anti-Terrorism Standards

AGENCY:

National Protection and Programs Directorate, DHS.

ACTION:

Notice of availability; request for comments.

SUMMARY:

The Department of Homeland Security (DHS) is accepting comments on the draft “Risk-Based Performance Standards” Guidance associated with the Chemical Facility Anti-Terrorism Standards.

DATES:

Comments must be received by November 26, 2008.

ADDRESSES:

Comments must be identified by docket number DHS-2006-0073 and may be submitted by one of the following methods:

• Federal Rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
• Mail: Dennis Deziel, U.S. Department of Homeland Security, National Protection and Programs Directorate, Office of Infrastructure Protection, Infrastructure Security Compliance Division, Mail Stop 8100, Washington, DC 20528.

FOR FURTHER INFORMATION CONTACT:

Dennis Deziel, Office of Infrastructure Protection, Mail Stop 8100, Washington, DC 20528, telephone number [phone].

SUPPLEMENTARY INFORMATION:

I. Public Participation

DHS invites interested persons to contribute suggestions and comments on the draft document entitled “Risk-Based Performance Standards Guidance” (RBPS Guidance) by submitting written data, views, or arguments. Comments that will provide the most assistance to DHS will explain the reason for any recommended changes to the RBPS Guidance and include data, information, or authority that supports such recommended changes. DHS requests that commenters identify the proposed changes by page and line number, and/or by Figure or Table number. The RBPS Guidance can be viewed or downloaded at http://www.dhs.gov/​chemicalsecurity and http://www.regulations.gov.

Instructions: All submissions received must include the agency name and docket number for this action. All comments received will be posted without change to http://www.regulations.gov,, including any personal information provided. You may submit your comments and material by one of the methods specified in the ADDRESSES section above. Please submit your comments and any supporting material by only one means to avoid the receipt and review of duplicate submissions. If you submit comments by mail, your submission should be an unbound document and no larger than 8.5 by 11 inches to enable copying and electronic document management.

Docket: The RBPS Guidance and any comments received can be viewed at http://www.regulations.gov by searching the docket number referenced above.

II. Background

In Section 550 of the Homeland Security Appropriations Act of 2007 (Pub. L. 109-295) (Section 550), Congress gave DHS regulatory authority over security at high-risk chemical facilities. Section 550 instructed DHS to require all high-risk chemical facilities to complete Security Vulnerability Assessments (SVAs), develop Site Security Plans (SSPs), and implement protective measures necessary to meet DHS-defined risk-based performance standards.

Pursuant to its congressional mandate, DHS promulgated the Chemical Facility Anti-Terrorism Standards (CFATS), 6 CFR Part 27, the interim final regulations setting forth the requirements that high risk (i.e., “covered”) chemical facilities must meet to comply with the Act. See 72 FR 17688 (Apr. 9, 2007). Among other things, CFATS establishes eighteen Risk-Based Performance Standards (RBPSs), which identify the areas for which DHS will examine a high-risk facility's security posture; they include perimeter security, access control, personnel surety, and cyber security.

To meet the RBPSs, covered facilities may choose whatever security programs or processes they deem appropriate, so long as DHS determines that those measures achieve the requisite level of performance in each applicable area. The programs and processes a high-risk facility ultimately chooses to implement to meet these standards must be described in the facility's SSP or, if the facility chooses, in an Alternative Security Program (ASP) that meets the requirements of Section 550 and CFATS. It is through a review of the SSP (or ASP), combined with an on-site inspection, that DHS will determine whether or not a high-risk facility has met the requisite levels of performance established by the RBPSs, given the facility's individual circumstances.

As required by 6 CFR 27.230(a), DHS has developed the RBPS Guidance to assist high-risk chemical facilities in selecting and implementing appropriate protective measures and practices to meet the applicable RBPSs. The draft RBPS Guidance describes the general level of performance that facilities in each of the risk-based tiers created by CFATS should strive to achieve under each RBPS. It also seeks to help facilities comply with CFATS by describing in greater detail the eighteen RBPSs enumerated in CFATS, and by providing examples of various security measures and practices that facilities could consider to achieve the desired level of performance for each RBPS at each tier.

The draft RBPS Guidance reflects DHS's current views on certain aspects of the RBPSs and does not have the force or effect of law. The specific security measures and practices discussed in this document are neither mandatory nor necessarily the “preferred solution” for complying with the RBPSs. Rather, they are examples of measures and practices that a high risk facility may choose to consider as part of its overall strategy to address the RBPSs. High-risk facility owners/operators have the option to choose and implement other measures to meet the RBPSs based on the facility's circumstances, including its tier level, security issues and risks, physical and operating environments, and other appropriate factors, so long as DHS determines that the suite of measures implemented achieves the levels of performance established by the RBPSs.

DHS seeks comment on the draft RBPS Guidance document, which is available online at http://www.dhs.gov/​chemicalsecurity and http://www.regulations.gov. Based on the comments received, DHS may make appropriate revisions to the RBPS Guidance. In that event, DHS will make available a revised RBPS Guidance at http://www.dhs.gov/​chemicalsecurity and http://www.regulations.gov.

Robert B. Stephan,

Assistant Secretary for Infrastructure Protection, Department of Homeland Security.