November 30, Docket No. DHS Chemical Facility Anti-Terrorism Standards (CFATS) Appendix A. To Whom It May Concern:

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1 American Fuel & Petrochemical Manufacturers November 30, K Street, NW Suite 700 Washington, DC office direct fax Department of Homeland Security National Protection and Programs Directorate Office of Infrastructure Protection Infrastructure Security Compliance Division 245 Murray Lane Stop 0610 Arlington, VA RE: Docket No. DHS Chemical Facility Anti-Terrorism Standards (CFATS) Appendix A To Whom It May Concern: The American Fuel and Petrochemical Manufacturers (AFPM) 1 is pleased to respond to the Department of Homeland Security s notice requesting public comment on the Appendix A Chemicals of Interest (COI) list. 2 Reviewing the COI on Appendix A is an important step in potentially modifying which AFPM facilities may be subject to Chemical Facility Anti- Terrorism Standards (CFATS). AFPM supports the Department of Homeland Security (DHS) commitment to finalize the revisions and corrections to the methodology by which it evaluates risk under the CFATS program. We agree with DHS that until this methodology is finalized and tested, it is not possible to evaluate the potential impacts of modifications to the COI Appendix A list or the Screening Threshold Quantity (STQ) will have on the regulated community or DHS. I. General Comments AFPM supports a DHS review of the CFATS Appendix A COI list. Any changes to Appendix A, whether they be adding or subtracting chemicals or, lowering or raising existing 1 AFPM is a national trade association representing more than 400 companies, including a majority of all U.S. refiners and petrochemical manufacturers. AFPM members operate 120 U.S. refineries comprising more than 95 percent of U.S. refining capacity and 98 percent of petrochemical production Federal Register (October 16, 2015). The COI list is codified at 6 CFR Part 27. 1

2 thresholds, should only be done upon DHS making a well-reasoned determination based on credible data and sound science and through formal rulemaking in compliance with the Administrative Procedure Act (APA). DHS must find that a chemical presents a specific security risk and that its regulation under CFATS would result in measurable security benefit (i.e., risk reduction) that exceeds the cost of regulatory compliance. To assist DHS in its efforts to make science-based decisions, AFPM recommends that DHS convene an informal advisory body to assist in the identification of factors that should be considered for any change to Appendix A. The advisory committee should be comprised only of participants with the technical capabilities to evaluate the risk and consequences of modifications to the list of COI in Appendix A. list: The following factors are relevant to DHS s decision to propose modifications to the COI Chemical composition, including toxicity, reactivity, and flammability; Ability to weaponize the chemical; Whether the chemical is available outside the facility; Offsite impact of a security incident involving the chemical at the facility. Ability to transport and conceal the chemical; Duration on site II. Mixture Rule AFPM urges DHS to simplify the mixture rule by utilizing the existing National Fire Protection Association s (NFPA) chemical hazard rating system. 3 The current system of regulating mixtures by percentages of discreet chemicals in the mixture is not scientifically sound, nor can it be properly implemented and enforced. AFPM believes that any mixture with a flammability rating of 3 or less as defined by the NFPA, should not be subject to CFATS. AFPM has previously supplied comments on this issue where it has readily demonstrated that fuel tanks are not targets of terrorists and would not have significant offsite consequences 4. Regulating chemical mixtures by discreet percentages has created an undue burden for both the regulated community and DHS. It is highly doubtful that terrorists are concerned with percentages of chemicals, as opposed to the health, flammability, or instability of the mixture (i.e., the ability to utilize the mixture as a weapon). Regulating by percentage is also difficult to implement and enforce as mixtures can change on a daily basis, according to the raw materials 3 See National Fire Protection Association, Standard System for the Identification of the Hazards of Materials for Emergency Response, (2012); 4 See attached March 16, 201 AFPM comments on Proposed Rule on CFATS (DHS , 75 FR Jan. 12, 2010) 2

3 used as process inputs. Enforcement of such provisions would require inspectors to sample the mixtures on a continual basis. AFPM opposes any move to regulate chemicals down to 1 percent concentration. There is no scientific merit to the arbitrary selection of such a low concentration, which in almost all cases is unlikely to pose a significant security risk. Unless DHS can technically justify and demonstrate that a particular chemical at such a low concentration presents a high security risk, DHS should not regulate that mixture. AFPM offers a more practical approach that is consistent with other federal and state agencies, as well as standard industry practices. The NFPA rating system which has been used to describe the hazards of chemicals since The NPFPA system is used by industry and emergency responders throughout the United States and provides a clear, concise way to identify and recognize the hazards of both discrete chemicals and mixtures. The only substances that should be regulated in a security context are those with a health, flammability, or instability rating of 4 5. Substances with ratings of 3 or lower should not be included in Appendix A, unless they are substances that could easily be converted into a weapon of mass effect. III. Process Changes to Appendix A must be done through a formal rulemaking in compliance with the APA. The CFATS legislation does not provide DHS with the authority to make substantive amendments like adding a chemical to Appendix A by guidance or clarification. The addition or deletion of chemicals and the adjustment of threshold quantities on Appendix A constitute a legislative rule because Appendix A is used to determine the applicability of the CFATS regulations. So as to not unduly force industry to submit information to DHS multiple times and potentially create a bottleneck at DHS, implementing changes to Appendix A must be done in a coordinated fashion to account for upcoming changes in the tiering methodology. The new methodology could change tiering and corresponding security measures to meet each of the 18 Risk-Based Performance Standards (RBPS). The regulated community has still not seen the potential changes to DHS s risk assessment methodology and what those changes could mean for company operations. DHS s proper coordination of the tiering methodology and revisions to Appendix A will reduce the likelihood of an information overload for DHS, and could help speed CFATS implementation. 5 See National Fire Protection Association, Standard System for the Identification of the Hazards of Materials for Emergency Response, (2012); 3

4 IV. Proposed Changes to Appendix A Must Be Based on Reliable Data and Sound Science Security is a function of risk and consequence, which must inform decisions to modify Appendix A and subject a facility to CFATS. Before DHS proposes any additions to Appendix A or lowering of screening threshold quantities (STQs), DHS must develop reliable data that demonstrate that the proposed COI presents a security risk and that compliance with CFATS would mitigate this risk. Anything short of this would be viewed as arbitrary and capricious. Such a demonstration cannot be based upon public opinion or driven by political agenda, and cannot be theoretical or hypothetical. Rather, such demonstrations must be based on empirical data concerning the physical characteristics, hazards, and potential health effects of a given chemical as it relates to various attack scenarios and the detached, reproducible scientific assessment of that data. V. DHS Must Acknowledge that COI In Transportation are within the Jurisdiction of the Department of Transportation Under CFATS, containers that are in transportation are regulated by the Department of Transportation and not counted towards a facility s STQ. 6 AFPM recommends that DHS maintain this exemption to avoid duplicative regulations that may waste scarce government and industry resources and confound the regulated community s ability to comply with overlapping regulatory programs. If DHS were to extend the CFATS program into the transportation segment, it would exceed its statutory authority and create a confusing regulatory program. Finally, DHS should continue to acknowledge that security over pipeline assets is within the jurisdiction of the Pipeline and Hazardous Materials Safety Administration (PHMSA). VI. Conclusion AFPM appreciates that DHS is committed to reviewing suggestions for changes to the Appendix A list of COI. Any changes to Appendix A, whether they be adding or subtracting chemicals, or lowering or raising existing thresholds, should only be done upon DHS making a well-reasoned determination based on credible data and sound science. As DHS is aware, subjecting chemical mixtures to CFATS is a major concern for AFPM members, particularly as it is applied to fuel mixtures. Regulating chemical mixtures by discreet percentages has created an undue burden for both the regulated community and DHS. AFPM firmly believes that any mixture with a NFPA flammability rating of 3 or less, under the definitions of the NFPA, should not be subject to CFATS. AFPM has previously supplied comments on this issue where it has readily demonstrated that fuel tanks are not targets of terrorists and would not have significant offsite consequences. Finally, AFPM contends that any changes to Appendix A must be done by formal notice and comment in the Federal Register in accordance with the APA. 6 See 49 CFR Part 172, subpart I. 4

5 AFPM looks forward to working with DHS as revisions to this important part of the CFATS regulation are explored. If you have questions or need further information please contact me at or at Respectfully submitted, Jeff Gunnulfsen Director, Security and Risk Management Issues American Fuel & Petrochemical Manufacturers 5