Office of Infrastructure Protection

National Protection and Programs Directorate

U.S. Department of Homeland Security 

Washington, DC 20528

CHEMICAL FACILITY ANTI-TERRORISM STANDARDS

ADVANCE NOTICE OF PROPOSED RULEMAKING

LISTENING SESSION HELD IN SACRAMENTO, CA ON

SEPTEMBER 23, 2014

CONTENTS:

Agenda

Transcript
Chemical Facility Anti-Terrorism Standards

Advance Notice of Proposed Rulemaking (CFATS ANPRM)

September 23, 2014 Listening Session 

Hosted by the Department of Homeland Security (DHS) – UC Davis Center Sacramento, Conference Room B, 1130 K Street, Suite LL22, 

Sacramento, CA 95814

Agenda

8:00 a.m. – 9:00 a.m. Registration

9:00 a.m. – 9:20 a.m. Welcome, Introductions, and Overview

Kate Finnerty, Facilitator

Bing Yee, Department of Homeland Security, Office of General Counsel

Rodney Lockett, Department of Homeland Security, Chemical Facility Inspector

9:20 a.m. – 9:30 a.m. Listening Session Format

Kate Finnerty, Facilitator

9:30 a.m. – 11:00 a.m. Public Listening Session

Comments from Listening Session Participants

11:00 a.m. – 11:15 a.m. BREAK

11:15 a.m. – 12:15 p.m. Public Listening Session

Comments from Listening Session Participants

12:15 p.m. – 12:45 p.m. Open Session (as time permits)

12:45 p.m. – 1:00 p.m. Closing Comments

1:00 p.m. Adjournment

Persons may also submit written comments to U.S. Department of Homeland Security, National Protection and Programs Directorate, 

Office of Infrastructure Protection, Infrastructure Security Compliance Division, 245 Murray Lane, Mail Stop 0610, Arlington, VA 20528-0610 

or through the Federal eRulemaking Portal at http://www.regulations.gov.

For more information on the CFATS ANPRM, please visit https://www.dhs.gov/CFATS-Rulemaking.
1

UNITED STATES OF AMERICA

DEPARTMENT OF HOMELAND SECURITY

OFFICE OF THE SECRETARY

____________________

Advance Notice of : 

 : Docket No. 

: DHS-2014-0016

Proposed Rulemaking :

 :

: RIN 1601-AA69

6 Code of Federal :

Regulations Part 27 :

___________________ :

TRANSCRIPT of the

CHEMICAL FACILITY ANTI-TERRORISM STANDARDS

LISTENING SESSION

Tuesday, September 23, 2014

University of California

Center Sacramento

1130 K Street, Suite LL22

Sacramento, California 95814

Staff in attendance

from DHS Headquarters:

Mary Blackmoor, Program Analyst

Rodney Lockett, Regional Director,

Western District

Carlos Vazquez, Director, Western District

Portland Wilson, Program Analyst

Bing Yee, Attorney-Advisor, Office of

General Counsel

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1 P-R-O-C-E-E-D-I-N-G-S

2 (9:03 a.m.)

3 MS. FINNERTY: Good morning, 

4 everyone. As everybody takes their seats, 

5 we'll go ahead and get started.

6 Good morning and welcome to the 

7 listening session for the Chemical Facility 

8 Anti-Terrorism Standards Advance Notice of 

9 Proposed Rulemaking, or CFATS ANPRM, that was 

10 issued by the U.S. Department of Homeland 

11 Security on August 18th, 2014. We're glad that 

12 you are here with us this morning.

13 This is the fifth listening session 

14 in a series that will be held across the 

15 country, including six in person and two via 

16 webinar. My name is Kate Finnerty, with 

17 Energetics Incorporated. I'll be your 

18 moderator today, as arranged by the U.S. 

19 Department of Homeland Security.

20 Before we get started I would like 

21 to make a couple of announcements.

22 All stakeholders are welcome to 

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1 submit written comments on the CFATS ANPRM. 

2 Besides commenting in person at a listening 

3 session, there are two other ways to submit 

4 those written comments. They are both listed 

5 on the agenda that was handed out at 

6 registration and they're also listed in the 

7 Federal Register Notice. They included the 

8 Federal eRulemaking Portal at 

9 www.regulations.gov, and also there is a 

10 physical mailing address listed should you not 

11 have internet access.

12 The deadline to submit comments is 

13 October 17th, 2014, which is 60 calendar days 

14 after publication of the ANPRM in the Federal 

15 Register. The comments provided during this 

16 session are being transcribed for notetaking 

17 purposes and a transcript of each listening 

18 session will be posted on a docket in the 

19 Federal Register at a later date. So please 

20 use available microphones if you would like to 

21 speak today.

22 In case of emergency, there's a 

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1 staircase right outside the door here to my 

2 left, to your right, that will take you straight 

3 up to the alley way. You'll be able to exit the 

4 building there. The restrooms are located, 

5 again, out this door, back past registration 

6 towards the elevator bank, and there are 

7 bathroom codes posted on the wall. And, 

8 finally, as a courtesy to everyone 

9 participating, please do put your phones on 

10 silent.

11 The purpose of today's session is to 

12 gather public comments, data, or views on how 

13 the current CFATS regulation, which is 6 CFR 

14 Part 27, issued in 2007, might be modified. 

15 Issuing the Advance Notice of Proposed 

16 Rulemaking enables the Department to provide 

17 stakeholders with an opportunity to provide 

18 comments or suggestions for identifying ways to 

19 make the program more effective in achieving 

20 its regulatory objectives.

21 As far as the process goes this 

22 morning, we'll begin with opening remarks, 

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1 which will include a brief overview of the 

2 status of the CFATS program. And then the 

3 remainder the session is allocated to hearing 

4 from the stakeholders.

5 At this time I would like to 

6 introduce Mr. Bing Yee, Attorney-Advisor with 

7 the DHS Office of General Counsel.

8 MR. YEE: Hello.

9 MS. FINNERTY: There you go. 

10 (Referring to the microphone.) 

11 MR. YEE: Okay, there we go. It 

12 takes a little while for this to warm up, I 

13 guess.

14 Okay. Thank you very much for 

15 introducing me and for presiding over today's 

16 session.

17 Ladies and gentlemen, thank you for 

18 coming out today for this listening session on 

19 the CFATS ANPRM. I also want to thank 

20 obviously the University of California for 

21 supplying us this venue. I want to acknowledge 

22 the ISCD staff that are here with me. You were 

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1 greeted outside by Mary Blackmoor and Portland 

2 Wilson. In addition, to my left Rodney 

3 Lockett, and Carlos Vazquez, -- Carlos, raise 

4 your hand -- Carlos and Rodney are based here 

5 in the West Coast. They're the inspector 

6 supervisors in charge of Inspection 

7 Operations. And, I've actually had the 

8 pleasure of working with both of them quite a 

9 lot actually, especially Rodney. Because of 

10 their expertise and experience, they're 

11 actually called on a lot of times to come to 

12 Washington and to work on special projects. 

13 And it's been a great pleasure working with 

14 them.

15 I obviously want to thank Director 

16 Dave Wulf, Deputy Director Scott Breor, and 

17 Policy and Rulemaking Branch Chief Amy Graydon 

18 for giving me the opportunity to come out here 

19 to Sacramento to serve as a panelist at this 

20 ANPRM listening session.

21 I wasn't born or raised here, but I 

22 have a lot of roots here in Northern California. 

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1 I have family in San Francisco and actually here 

2 in Sacramento and in Elk Grove. So it's always 

3 a pleasure to come out here to be able to see 

4 them as well as make some visits. I'm going to 

5 take a personal prerogative to give a shout-out 

6 to Sergeant Reid Harris, the husband of my 

7 cousin, Eki. He's a sergeant at the Sacramento 

8 Police Department. I want to wish him a speedy 

9 recovery because he had some major foot 

10 surgery, so he's a little laid out right now. 

11 So hopefully he will be back on his feet in short 

12 order.

13 As Kate mentioned, I am with the DHS 

14 Office of the General Counsel. And, yes, that 

15 means I am a lawyer. I don't work directly for 

16 Dave Wulf, but I work almost exclusively on 

17 CFATS issues. Just a little bit of a 

18 background, I came to DHS pretty much in its 

19 infancy. I started with the Transportation 

20 Security Administration in 2002, and you know 

21 that was created right around then. And then 

22 in 2008 I was asked to come over to something 

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1 called the Chemical Facility Anti-Terrorism 

2 Standards, which was also in its infancy, so I 

3 kind of have a little history of that.

4 I kind of remember my first week 

5 working with ISCD, one of my colleagues was 

6 actually working on issuing the Risk-Based 

7 Performance Standards Guidance, so that kind of

8 gives you a background of how much I have 

9 actually been able to see and witness in the 

10 last six years I have been with the program.

11 And, yes, there have been a lot of 

12 fits and starts. Things didn't always really 

13 go smoothly, but you know I think we're in a very 

14 good place right now under the very capable 

15 leadership of Dave and Scott and people like 

16 Rodney and Carlos.

17 I was handed a set of statistics 

18 this morning, as of September 22nd, the CFATS 

19 program covers 3,728 facilities, of which 3,092 

20 of them are final-tier facilities. DHS has 

21 actually received around 4,600 Site Security 

22 Plans and Alternative Security Programs. Of 

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1 these, 2,162 of them have been authorized. 

2 Carlos and Rodney and the inspectors over which 

3 they preside, across the country, they have 

4 performed 1,537 Authorization Inspections. 

5 And that has actually led DHS to giving -- this 

6 is the most important statistic, which is we 

7 have approved 1,107 Site Security Plans and 

8 Alternative Security Programs.

9 Now most of that progress has 

10 actually been over the last two years, so when 

11 you think about that that's actually a really 

12 impressive figure.

13 I want to actually touch on some of 

14 the other important work I work on now. If you 

15 recall, actually about a year ago, October 1st 

16 there was a government shutdown. And over 

17 about a 17-day period the CFATS program 

18 stopped. I mean I couldn't go to work, Carlos 

19 couldn't go to work, Rodney couldn't go to work. 

20 But it wasn=t only an issue of not bringing in 

21 people at ISCD, the people who work directly 

22 over CFATS -- because, as you know, the CFATS 

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1 program is actually authorized in an 

2 appropriations bill. The organic authority 

3 for it is Section 550 of the DHS Appropriations 

4 Act of 2007. When that was originally enacted 

5 it had a sunset date of three years. And 

6 usually what happened was that when Congress 

7 went through their annual appropriations 

8 process, that just got extended for the 

9 duration of the appropriations bill.

10 Well, when Congress had an impasse 

11 last year, that really acutely affected the 

12 CFATS program because not only did the program 

13 not have any money, it didn't actually have an 

14 authorization, or the authorization was called 

15 into question. And finally that impasse got 

16 resolved, but that really served as a wake-up 

17 call to Congress and through our own 

18 organization that, hey, it really is time, 

19 especially considering the substantial 

20 progress we were making on getting chemical 

21 facilities to have their SSPs authorized and 

22 approved, that it really is time to give 

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1 permanent authorization to the CFATS program.

2 And so one of the main parts of my 

3 portfolio is actually working with people in 

4 the Office of Legislative Affairs as well as 

5 congressional staff to try to get a bill 

6 enacted, into law to put this program onto 

7 firmer footing.

8 I want to give you a progress update 

9 on that. HR 4007, the CFATS Authorization and 

10 Accountability Act of 2014, passed the House of 

11 Representatives on July 8th. The Senate has 

12 also made substantial progress. The Senate 

13 Committee on Homeland Security and Government 

14 Affairs passed its version of the bill. Theirs 

15 is called the Protecting and Securing Chemical 

16 Facilities from Terrorist Attacks Act of 2014, 

17 and they reported their bill out of committee 

18 in late July.

19 Right now in Washington we're in an 

20 extended recess. The members are out in full 

21 campaign mode, but we're very hopeful that 

22 when -- after the election they will come back 

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1 in and we're cautiously optimistic that the 

2 Senate will pass their bill and resolve their 

3 differences with the House. And by the end of 

4 the year, hopefully, the President will sign 

5 the bill into law, to put this program into 

6 firmer footing and to give permanent or 

7 extended authorization to the CFATS program.

8 I know how important it is not just 

9 to DHS but also to industry, to give that firmer 

10 footing so that -- you know, industry needs to 

11 have some security that this program is here to 

12 stay, and also to send a message out to 

13 outliers, such as West Texas, who as you know 

14 if they are to avoid the program, this program 

15 is here to stay, and they have chemicals of 

16 interest. They need to report them and go 

17 through the process of DHS identifying them and 

18 potentially regulating them.

19 So that is sort of a good segue into 

20 EO 13650. I was actually out here for the 

21 listening session that we had in Sacramento for 

22 that EO. As you know, that was -- we had a 

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1 tragic industrial accident in West Texas 

2 involving a fertilizer plant. That really 

3 highlighted the need to revisit the 

4 cross-cutting issues involving chemical 

5 facility safety and security that a number of 

6 agencies, not just DHS, but across the Federal 

7 Government that the responsibility is under 

8 their jurisdiction.

9 So the President issued the EO in 

10 August of 2013. It created an interagency 

11 working group led by DHS, OSHA, and EPA to 

12 consider issues surrounding chemical facility 

13 safety and security. And, it wasn't just 

14 creating an interagency working group to get a 

15 bunch of feds to sit around the table and 

16 brainstorm. It was actually we wanted to go 

17 out to the public and get feedback on what the 

18 public's ideas were and what kind of issues we 

19 had to really focus on. So we had listening 

20 sessions such as the one down the street in 

21 Sacramento. And after that we considered all 

22 the ideas and tried to digest that.

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1 And that led to the June 6th 

2 issuance of the status report to the President, 

3 "Actions to Improve Chemical Facility Safety 

4 and Security - A Shared Commitment." That 

5 report actually lays out 25 priority actions in 

6 5 thematic areas, and I will go over them: 

7 strengthening and community planning and 

8 preparedness; enhancing federal operational 

9 coordination; improving data management; 

10 incorporating stakeholder feedback and

11 developing best practices; and, finally, 

12 modernizing policies and regulations.

13 And, on that last broad thematic 

14 area, one of the specific items called for DHS 

15 issuing the Advance Notice of Proposed 

16 Rulemaking to figure out how best to improve 

17 upon the existing CFATS program, and that's our 

18 reason why we're here today.

19 So, as Kate mentioned, the ANPRM was 

20 issued in August, last month. We're right in 

21 the middle right now of the 60-day comment 

22 period for soliciting your ideas on how to 

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1 improve the CFATS program. There are seven 

2 broad areas where we're looking for public 

3 comment, although obviously if there are other 

4 areas that don't fall within these, the public 

5 is welcome to comment as well. But, those 

6 seven areas are general regulatory approach; 

7 treatment of non-traditional chemical 

8 facilities; clarification of terminology; the 

9 Risk-Based Performance Standards; the Appendix 

10 A, Chemicals of Interest; consideration for 

11 small businesses; and alignment with other 

12 regulatory programs.

13 So I think I've probably taken 

14 enough time and I want to get to the reason why 

15 we're really here today, which is to listen to 

16 you. So with that I think I will turn this 

17 back.

18 MS. FINNERTY: Great. Thank you, 

19 Mr. Yee.

20 I would now like to introduce Mr. 

21 Rodney Lockett, also -- not also, but -- with 

22 the DHS Infrastructure Security Compliance 

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1 Division.

2 Mr. Lockett, would you like to give 

3 some welcome remarks?

4 MR. LOCKETT: Yes. Thank you.

5 Again, my name is Rodney Lockett. 

6 I'm a Region 9 Regional Director. My remarks 

7 are going to be very short.

8 I appreciate everybody showing up 

9 to today's event, and we extremely really look 

10 forward to listening to your comments and 

11 suggestions on how to move the program forward 

12 and further enhance the rule. Thank you.

13 MS. FINNERTY: Thank you, Mr. 

14 Lockett.

15 The remainder of the session today 

16 is set aside to hear from you, the stakeholders. 

17 And before we do hear from you, I would like to 

18 outline the format and ground rules for today's 

19 session.

20 This is a listening session with the 

21 purpose to hear a diverse set of opinions from 

22 across a broad spectrum of stakeholders who 

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1 have an interest in improving and streamlining 

2 the CFATS rule. DHS is interested in comments 

3 on the topics described in Part 4 of the ANPRM, 

4 as listed by Mr. Yee a few minutes ago.

5 We do hope to hear a range of 

6 suggestions and all viewpoints are welcome this 

7 morning. As such, we are not seeking consensus 

8 today on any of the topics.

9 All presenters are asked to keep

10 their comments directly related to the topics 

11 contained in the rule. I will also note that 

12 specific suggestions and supporting data are 

13 the most helpful comments.

14 The rest of today's listening 

15 session will include two parts. In a few 

16 minutes I will ask those who signed up in 

17 advance to present today to come forward and 

18 speak at our microphone. Individuals will 

19 have a maximum of five minutes to present to the 

20 panel, which does include any introduction to 

21 your remarks. Members of the panel may then 

22 ask some clarifying questions.

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1 I will then open the floor to anyone 

2 else in the room that would like to speak on the 

3 topics of the CFATS ANPRM. And those 

4 individuals will also have a maximum of five 

5 minutes to speak.

6 To help us with timekeeping this 

7 morning, I will raise a yellow card when you 

8 have one minute remaining and a red card when 

9 your time is up.

10 We do ask that you respect 

11 everyone's time and stay within the designated 

12 timeframes.

13 If there are no questions on the 

14 process, we'll go ahead and get started. I 

15 would like to ask the following individuals who 

16 registered in advance to present to come 

17 forward. You may sit in the front row, and 

18 Carlos has the microphone. Mr. Ulrich and Mr. 

19 Jacob.

20 MR. JACOB: My apologies for the 

21 set-up. (Referring to the microphone.) Good 

22 morning. My name is Tom Jacob. I am the 

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1 Senior Consultant to the Chemical Industry 

2 Council of California. My colleague, the 

3 Executive Director of the CICC, John Ulrich, is 

4 not able to make it this morning.

5 The CICC is a 35-year-old statewide 

6 chemical industry trade association 

7 compromised of large and small chemical 

8 manufacturers, chemical distributors, and 

9 allied businesses throughout California. 

10 CICC represents numerous companies with over 

11 100 California facilities, including 

12 manufacturing sites, research laboratories, 

13 and distribution centers. Our mission is to 

14 provide a means for individual companies to 

15 combine their expertise and resources to deal 

16 effectively with public policy issues 

17 affecting the chemical industry in this state.

18 During the past seven years, CICC 

19 has placed a strong emphasis on promoting 

20 chemical facility security and acting in 

21 liaison between our member companies and 

22 federal and state agencies charged with 

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1 protection of critical infrastructure. CICC 

2 has been particularly active with the 

3 Department of Homeland Security, the 

4 California Governor's Office of Emergency 

5 Services Infrastructure Protection Division, 

6 the FBI's InfraGard Program, and various 

7 multi-agency threat-assessment fusion centers 

8 throughout California. CICC has promoted 

9 compliance with CFATS, provided opportunities 

10 for awareness training regarding domestic and 

11 foreign terrorism, and facilitated proactive 

12 working relationships with DHS personnel as 

13 well as with federal, state, and local law 

14 enforcement agencies.

15 In addition to participating in 

16 CICC, our member companies also participate in 

17 national associations such as the American 

18 Chemistry Council, Society of Chemical 

19 Manufacturers and Affiliates, and National 

20 Association of Chemical Distributors. All 

21 three national organizations have highly 

22 respected and independently-verified 

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1 environment, health, safety, and security 

2 codes of conduct as conditions of membership. 

3 Respectively, these industry programs are 

4 known as Responsible Care, ChemStewards, and 

5 Responsible Distribution. All three programs 

6 are designed to protect the environment; 

7 promote health and safety of employees and 

8 community members; enhance product 

9 stewardship; and ensure the security of 

10 chemical products, raw materials, and 

11 facilities.

12 Under each code of conduct member 

13 companies must develop, implement, and undergo 

14 periodic third-party verification of policies 

15 and procedures that are designed to reduce 

16 incidents and continuously improve safety and 

17 security. Representatives of these national 

18 associations are active with the chemical 

19 coordinating -- Chemical Sector Coordinating 

20 Council in Washington.

21 The CICC strongly endorses the work 

22 of these groups and suggests that DHS continue 

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1 interacting with these organizations to fully 

2 appreciate and utilize the extremely robust 

3 EHS&S rules of conduct that they administer.

4 CICC commends DHS for progress made 

5 in the CFATS program over the past two years. 

6 It is our understanding that the Agency has 

7 indeed now completed over a thousand Site 

8 Security Plans. Our California members have 

9 reported favorably on the professionalism of 

10 the inspectors and the general conduct of 

11 preauthorization inspections.

12 Some key measures that have 

13 increased program efficiencies in our view 

14 include: better coordination of inspections 

15 for companies with multiple facilities; the 

16 ability to open up Site Security Plans during 

17 inspections; and acceptance of Alternative 

18 Security Programs.

19 With regard to Alternative Security 

20 Programs, CICC urges DHS to continue to 

21 encourage the use of these effective programs. 

22 By comparison, member companies have reported 

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1 that the Chemical Security Assessment Tool Site 

2 Security Plan template results in too many 

3 pages, not enough useful information, and 

4 effectively no coherent plan. Alternative 

5 Security Programs, on the other hand, are real 

6 security plans that facilities can actually 

7 implement and monitor.

8 CICC also notes that DTSC -- or DHS' 

9 tiering methodology has from time to time been 

10 called into question. Several years ago a 

11 number of facilities received tiering notices 

12 from the Agency after those facilities had 

13 already invested significantly in security 

14 measures based on the original tiering. These 

15 companies learned after the fact that these 

16 investments would not have been necessary under 

17 the retiering designation. CICC hopes that 

18 DHS will make resolution of the tiering issue 

19 a top priority. While these are sensitive 

20 issues involved, CICC joins our national 

21 industry associations in urging DHS to make 

22 this process of risk tiering assessments as 

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1 transparent as practicable.

2 Similarly, CICC urges DHS to adopt 

3 the methodology to make SSP submission and 

4 resubmission processes more efficient. Under 

5 current procedures, even companies that 

6 eliminate chemicals of interest at their sites 

7 or reduce the amount of chemicals of interest 

8 to a level below regulatory threshold 

9 quantities, have experienced difficulties in 

10 getting DHS acceptance of these modifications 

11 short of repeating the entire submittal 

12 process.

13 MS. FINNERTY: Thank you, sir.

14 MR. JACOB: Thank you very much. 

15 We appreciate the opportunity to share these 

16 comments. We will follow this up with written 

17 submission.

18 MS. FINNERTY: Wonderful. And so 

19 when we open the floor for open session, you 

20 will be able to have the opportunity to come 

21 back and finish your comments.

22 MR. JACOB: Thank you.

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1 MS. FINNERTY: You're welcome.

2 I will now open the floor for 

3 additional comments during our open session 

4 period. If anyone else is interested this 

5 morning in submitting public comments here at 

6 our listening session, you may come and join us 

7 at the microphone. And, if there is more than 

8 one person that's interested this morning, you 

9 can line up at the chairs here at the front of 

10 the room.

11 Any takers?

12 I will keep the floor open. Please 

13 mill about and speak with your colleagues.

14 MR. YEE: I wanted to follow up 

15 on --

16 MS. FINNERTY: Yes.

17 MR. YEE: -- what this gentleman 

18 was saying.

19 So where are you on this 

20 essentially? So maybe you had not finished 

21 your presentation, but a lot of things you 

22 mentioned, such as CSAT, improving CSAT, and 

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1 the SSP submittal process, and also the SSPs. 

2 I mean that's -- those are things that the 

3 Department has already engaged with industry 

4 and are working on.

5 Are there specific things that you 

6 would suggest? You know the reason why we're 

7 having this meeting is to potentially think 

8 about changes to the regulations. Are there 

9 any suggestions that you have for how we can 

10 make all those processes run smoothly that 

11 necessitate changes to the underlying 

12 regulations?

13 MR. JACOB: I don't think I'm in a 

14 position to answer that in specifics right now. 

15 We are in the process of working within our 

16 organization as well as in consultation with 

17 the other trade associations that I mentioned 

18 to consolidate our views on that. And I do hope 

19 that we will be elaborate to more specifics on 

20 that when we follow this up with our written 

21 comment.

22 MR. YEE: Very well.

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1 MS. FINNERTY: Do you have 

2 additional comments that you would like to 

3 complete? You have another five minutes.

4 MR. JACOB: That's fine. Yeah, 

5 just to conclude. With respect to the overall 

6 process, we understand and appreciate the need 

7 to continuously improve safety and security at 

8 chemical facilities. And, we certainly urge 

9 DHS to avoid the trap of imposing new 

10 transformational suggestions like inherently 

11 safer technology or the like. This is a 

12 concept that sounds good and is easy to say, but 

13 in our view it's monumentally difficult to 

14 define and harder still to implement.

15 We would urge you to look to 

16 demonstrated successes of the voluntary 

17 industry management codes of conduct, such as 

18 those I mentioned earlier. These programs can 

19 and do deliver high quality, tangible benefits 

20 to communities, first responders, the 

21 environment, and the security of chemical 

22 facilities.

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1 We believe that much more can be 

2 achieved through dynamic public-private 

3 cooperation and resource-sharing than through 

4 significantly increased command-and-control 

5 regulation. And, in this regard we fully 

6 support the current Risk-Based Performance 

7 Standards approach that's embodied in CFATS and 

8 urge DHS particularly there to stay the course.

9 MS. FINNERTY: Thank you, sir.

10 MR. JACOB: Thank you.

11 MS. FINNERTY: Any other follow-up 

12 questions?

13 MR. LOCKETT: I actually do have a 

14 question.

15 So you spoke about the third-party 

16 verification that these other programs use, 

17 from ACC to SOCMA.

18 MR. JACOB: Yeah.

19 MR. LOCKETT: Can you provide some 

20 clarity on the specifics of that?

21 MR. JACOB: Well, these programs 

22 all began quite some years ago initially in the 

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1 form of what was then the Chemical 

2 Manufacturers Association Responsible Care 

3 Program that was actually developed in the wake 

4 of Bhopal. And that was a tragedy that was 

5 recognized as one that affected not just Union 

6 Carbide, the company directly involved, but it 

7 certainly had implications for all of us in 

8 terms of upgrading our cognizance of our 

9 surrounding communities and the impact that our 

10 facilities and our operations can potentially 

11 have.

12 And, with all these programs it's 

13 been a continuous evolution. And, initially 

14 their Responsible Care Program, for example, 

15 did not include third-party verification. It 

16 was adopted after a few years because it became 

17 apparent that simply a company attesting to its 

18 own reporting was not satisfactory when we were 

19 dealing with potential circumstances of the 

20 import of these programs. And, these are now 

21 generalized programs that insofar as the 

22 third-party verification, and there's actually 

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1 an involved kind of industry that is watching 

2 over these kinds of programs and has the ability 

3 to verify.

4 MR. LOCKETT: Okay. Thank you.

5 MS. FINNERTY: Any further 

6 questions?

7 MR. LOCKETT: I don't have another 

8 question. I just want to clarify that if we're 

9 into open session --

10 MS. FINNERTY: Yes.

11 MR. LOCKETT: -- that some of the 

12 things we're looking for are general regulatory 

13 approach, treatment of non-traditional 

14 chemical facilities, clarification of 

15 terminology. They are the things that we'd 

16 like to hear about. Risk-Based Performance 

17 Standards, Appendix A, consideration of small 

18 businesses, and alignment with other 

19 regulatory programs. So any comments of that 

20 would be appreciative.

21 MS. FINNERTY: Wonderful. Thank 

22 you, Mr. Lockett.

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1 Do we have any other public comments 

2 for this morning? Yes, sir. Please join us at 

3 the microphone. You may sit or stand. If you 

4 would introduce yourself and then you have your 

5 five minutes for comments.

6 MR. POISTER: Good morning. My 

7 name is Paul Poister and I am the Government 

8 Relations Manager for Agrium U.S. We have a 

9 fertilizer-manufacturing operation in West 

10 Sacramento. So, we want to welcome you here or 

11 back to Sacramento for the listening session.

12 We have as a company, through CICC 

13 and through our other two trade associations, 

14 The Fertilizer Institute and the Ag Retailers, 

15 participated throughout this process and in the 

16 series of listening sessions that we held as 

17 part of the Executive Order.

18 Mr. Lockett, your comments to Tom 

19 gave rise to a brief item I wanted to bring up 

20 to the panel and it's included in extensive 

21 written comments that TFI is submitting as part 

22 of this process. And that is new initiative 

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1 that we in the ag chemical sector are just 

2 getting underway. We're working closely with 

3 the Executive Order Working Group on this, and 

4 it's a program called Responsible Ag. And, I 

5 have some background information I'll just 

6 leave with you.

7 MS. FINNERTY: Thank you.

8 MR. POISTER: It is a third-party 

9 verification audit process. And, we are just 

10 now starting to train auditors to go out in the 

11 field and voluntarily audit retailers. There 

12 is a training center that is just opening up at 

13 the Asmark Institute in Owensboro, Kentucky. 

14 I had the opportunity last week to go through 

15 and see that. And, for our industry it is truly 

16 state-of-the-art as far as training centers go.

17 We'll start training these auditors 

18 by the end of October and then start going out 

19 and doing field audits of ag retailers early 

20 next year. It's an impressive list of 

21 compliance checkmarks that they'll go through. 

22 There are more than 400 separate items on the 

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1 audit list, and that's just for ag retailers who 

2 will voluntarily opt into the program.

3 So we will continue to keep DHS and 

4 the Working Group apprised of our success. 

5 When we first spoke about Responsible Ag last 

6 March on the Hill, Senator Boxer was very 

7 impressed and gave out a clarion call to our 

8 industry to get engaged with this pending any 

9 additional regulatory or legislative steps 

10 that may come about. But, this is a voluntary 

11 initiative that we're very proud to roll out. 

12 And, we'll be put auditors out in the field and 

13 probably about this time next year have some 

14 data to report back to the Department.

15 Any questions or comments?

16 MS. FINNERTY: Questions?

17 MR. LOCKETT: I think I gave a 

18 presentation last month to your group --

19 MR. POISTER: Um-hum.

20 MR. LOCKETT: -- or to the 

21 association. So it's good to see that you're 

22 coming up to speed. So my question is 

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1 what -- is the scope similar to Responsible Care 

2 or is it a larger scope and then what are the 

3 limitations of the facilities that you're 

4 looking at or are there any limitations?

5 MR. POISTER: At this point, the 

6 scope is primarily limited to ag chemical 

7 retail facilities. So retail farm centers, 

8 and we have them all across the State of 

9 California. Our company along has several 

10 dozens. Those companies will voluntarily 

11 contact Responsible Ag and schedule this 

12 third-party audit to come out to their site. 

13 They will go through the compliance checklist. 

14 The auditor will essentially give them a report 

15 back and say you are in full compliance of all 

16 of these myriad federal regulations that apply 

17 to you, or he will come back with some 

18 recommendations of how that facility can 

19 voluntarily get approved.

20 Once they meet the standards that 

21 Responsible Ag has set up, they will get kind 

22 of a gold standard checkmark from Responsible 

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1 Ag showing full compliance. And I think that 

2 will be very helpful to the regulatory 

3 community so that they have a sense even before 

4 they go to a location that that site's been 

5 audited and verified by third-party auditors.

6 Initially, it will be focused on 

7 those facilities that have dry 

8 agriculture-grade ammonia nitrate and 

9 anhydrous ammonia.

10 MR. LOCKETT: Okay.

11 MR. POISTER: I certainly can see 

12 this expanding out. The checklist covers a 

13 whole lot more than that.

14 MR. LOCKETT: Okay. Thank you.

15 MR. POISTER: Um-hum.

16 MR. YEE: Mr. Poister, how do you 

17 see the interplay, or do you have any 

18 recommendations on the interplay between 

19 third-party type audits such as Responsible Ag 

20 and the formal type of inspections that Rodney 

21 or his staff would perform under CFATS 

22 regulatory authority?

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1 MR. POISTER: Well, first I'd like 

2 to say speaking as a company here in California, 

3 we enjoy a very strong relationship with local,

4 state, and federal law enforcement, first 

5 responders, and regulators at our plant here. 

6 We are under Coast Guard jurisdiction and have 

7 a very good working relationship with people 

8 who come out routinely to our location.

9 To your specific question as how 

10 that might work with official regulatory 

11 compliance, I can only see that it would help. 

12 I would suspect that this hopefully will reach 

13 locations that to this point have not had the 

14 opportunity to have official inspections from 

15 agencies. There may be a little peer pressure 

16 as in, well, all my competitors are opting into 

17 this program to come out, probably I ought to 

18 do that too. And, it probably just speeds up 

19 the compliance process, because even before DHS 

20 or OSHA, or one of the other regulatory agencies 

21 would go to a site, hopefully that retailer has 

22 gone through, he's found where corrective 

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1 action may be necessary, and he's taken those 

2 steps.

3 MS. FINNERTY: Thank you.

4 Any other follow-up questions, 

5 gentlemen?

6 Do you want to? Great.

7 MR. JACOB: Yeah. I just wanted to 

8 pick up on that last one.

9 MS. FINNERTY: Is thisY

10 MR. JACOB: Is that okay?

11 MS. FINNERTY: We do not -- this is 

12 not a discussion session.

13 MR. JACOB: Okay.

14 MS. FINNERTY: If you have 

15 additional public comments that will be helpful 

16 for the public comment period for the CFATS 

17 ANPRM, we are more than happy to entertain those 

18 now. Otherwise, I will keep the floor open to 

19 anybody else that would like to present their 

20 five minutes of public comments. And, if we 

21 don't have any, I will keep the floor open and 

22 you all can speak amongst yourselves and learn 

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1 from each other today. And, if somebody is 

2 interested in speaking, -- yes, please. Thank 

3 you.

4 If you would please introduce 

5 yourself, and you have five minutes.

6 MR. DAVIS: Glynn Davis. I'm the 

7 Corporate Security Manager for Aerojet 

8 Rocketdyne in Rancho Cordova over there. We 

9 have been a part of the program since its 

10 inception and have welcomed this program from 

11 day one and been very aggressive with it.

12 Just a couple of comments. There's 

13 a lot of aspects of the program that we really, 

14 really like. First and foremost, continue 

15 with the program. I think it's a definite 

16 benefit to our companies and our Nation.

17 So, another one I would like to make 

18 is we really look forward you pushing down the 

19 personal surety efforts. We've been working 

20 on this for a long, long time. We need to get 

21 it going, because not only does personal surety 

22 help us with CFATS but it also helps us as a 

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1 company. It will also help us in things like 

2 workplace violence and another initiative of 

3 the President, the Insider Threat Initiative. 

4 So we need to get the personal surety stuff 

5 going as soon as possible, so we want to push 

6 that.

7 Another comment is on COI. I know 

8 you're working on it, but we need to redo the 

9 COI list. There are a number of things that 

10 just don't make sense. And, if you want a 

11 specific example, for instance, dinitrogen 

12 tetroxide has a threshold of 15 pounds. 

13 Hydrazine has a threshold of 10,000 pounds. If 

14 you talk to our chemists, they will tell you 

15 hydrazine is much more dangerous than 

16 dinitrogen tetroxide. So there's things like 

17 that where we really need to deep-dive into it, 

18 take some chemical resolves, add some 

19 chemicals, look at some thresholds of things. 

20 So that's a comment on that.

21 As far as a comment on the process. 

22 We need to seriously look at the process from 

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1 Top-Screen to SSP, because it's significantly 

2 redundant right now, and I have a good example 

3 of that.

4 We had our inspection of chem and 

5 aridisol (phonetic), of where an inspector 

6 looked at something, he says, hey, we need to 

7 drop this chemical. So, they did their 

8 inspection. We resubmitted actually an ASP, 

9 submitted that up. The ASP got approved. And 

10 three months later, DHS comes back and says, 

11 hey, you need to do an SVA.

12 I says, why do we need to do an SVA 

13 again. I just had my Site Security Plan 

14 approved, or whoever changed it.

15 So I think we need to really look at 

16 the redundancy there. I would suggest that, 

17 and I see where they're coming from, but I would 

18 suggest if your security issue doesn't change, 

19 more than likely your tiering is not going to 

20 change. So if you have a change in your 

21 chemical and it's within that security measure, 

22 theft or diversion, toxic, you shouldn't have 

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1 to go through the process all over again. But 

2 if you do, I do understand if you switch from 

3 a theft or diversion and you added a toxic 

4 release, you probably need to go through the 

5 process again. So that would be my suggestion, 

6 to look at something we could do to eliminate 

7 some of that redundancy.

8 So, Colin, do you have anything you 

9 want to add from our company?

10 COLIN: No.

11 I really appreciate your time, in 

12 closing. We love the program, we want to see 

13 it continue, and hopefully Congress and the 

14 Senate are going to approve this new bill. So 

15 thank you.

16 MS. FINNERTY: Thank you, sir.

17 MR. LOCKETT: Thank you.

18 MS. FINNERTY: Do we have follow-up 

19 questions?

20 MR. LOCKETT: No. I'm good. 

21 Thank you.

22 MR. YEE: No, no questions. I just 

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1 wanted to address the personal surety issue 

2 that you mentioned. That is -- we're in 

3 the -- yeah. We're still trying to get that 

4 information collection request approved by 

5 OMB. Now that's for a very specific part of 

6 personal surety. That's just for the 

7 terrorist-screening part. The other parts, 

8 the criminal-history records check, identity 

9 validation, those are in fact what we call 

10 RBPS-12 1 to 3. If you have an approved 

11 security program, that facility is required to 

12 implement those criminal history and those 

13 kinds of checks even though TSDB has been carved 

14 out. So I just want to make that 

15 clarification.

16 MS. FINNERTY: Great. Thank you.

17 Would anyone else like to submit 

18 public comments today?

19 Okay. I will keep the floor open. 

20 And, again, please feel free to mill about and 

21 speak amongst yourselves about these topics or 

22 anything else that's important for today. I 

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1 will return to the podium when we do have 

2 another guest that would like to provide public 

3 comments. Thank you.

4 (No public comments made from 9:46 

5 a.m. to 12:45 p.m.)

6 MS. FINNERTY: Good afternoon. 

7 I'd now like to introduce Mr. Rodney Lockett 

8 with the DHS Infrastructure Security 

9 Compliance Division for our closing comments.

10 MR. LOCKETT: I would like to thank 

11 everybody for their participation and your 

12 comments for today's session. Thank you.

13 MS. FINNERTY: Thank you, Mr. 

14 Lockett.

15 Again thank you, everyone, for 

16 participating in today's listening session on 

17 the Chemical Facility Anti-Terrorism Standards 

18 Advance Notice of Proposed Rulemaking. Please 

19 visit the docket in the Federal Register to view 

20 listening session notes and to submit 

21 additional written comments. Please visit the 

22 Chemical Security website to view the remaining 

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1 schedule of listening sessions. We are now 

2 adjourned.

3 (The session was adjourned at 12:46 

4 o'clock p.m.)

5

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