HR 1623 Introduced
CFATS Propane Exclusion
Last month, Rep Finstad (R,MN) introduced HR 1623 (no name). The bill would add certain commercial propane storage facilities to the list of facilities excluded from the reporting requirements of the Chemical Facility Anti-Terrorism Standards (CFATS) program. No funding is authorized by this legislation.
Excluded Facilities
The bill would amend paragraph (4) of §2101 of the Homeland Security Act of 2002 (6 USC 621) which provides the definition of ‘excluded facility’ for Subchapter XVI—Chemical Facility Anti-Terrorism Standards of 6 USC. It would add a new subparagraph (F):
““(F) subject to section 2110, a facility that stores propane for sale to or use by a dwelling (as such term is defined in section 802(b) of the Fair Housing Act (42 U.S.C. 3602(b))), sale to or use in agricultural production (as such term is defined in section 4279.2 of title 7, Code of Federal Regulations), or sale to or use by small business concerns (as such term is described under section 3 of the Small Business Act (15 U.S.C. 632)) that are located in rural areas (as such term is defined in section 520 of the Housing Act of 1949 (42 U.S.C. 1490));”
The bill would also add a new §2110 (such a section already exists so this should probably read ‘§2109A’) that would require DHS to notify congress anytime that it determined “that a propane storage facility does not satisfy the requirements of an excluded facility”.
The other categories of exempted facilities currently listed in §2101(4) are:
MTSA covered facilities,
Public waterworks,
Wastewater treatment works,
DOD owned or operated facilities, and
NRC regulated facilities.
Each of those categories of facilities are currently regulated (to one degree or another) for security under the programs listed in paragraph (4). This proposed bill would add an entirely unregulated (for security purposes) category of facilities to the paragraph (4) exclusion.
Existing Propane Treatment Under CFATS
The current rules for the CFATS program already provides special treatment for propane due to the concerns of the agriculture industry. First, under Appendix A to 6 CFR 27, the screening threshold quantity for propane is set at 60,000-lbs instead of the 10,000-lbs set for other release flammable chemicals of interest (COI). The reasoning for this difference was explained in the preamble to the rule establishing Appendix A:
“Using the revised general DHS rule for release-flammables, the STQ for propane would be 10,000 pounds. DHS, however, set the STQ for propane in this final rule at 60,000 pounds. Sixty thousand pounds is the estimated maximum amount of propane that non-industrial propane customers, such as restaurants and farmers, typically use. The Department believes that non-industrial users, especially those in rural areas, do not have the potential to create a significant risk to human life or health as would industrial users. The Department has elected, at this time, to focus efforts on large commercial propane establishments but may, after providing the public with an opportunity for notice and comment, extend its part 27 screening efforts to smaller facilities in the future. This higher STQ will focus DHS's security screening effort on industrial and major consumers, regional suppliers, bulk retail, and storage sites and away from non-industrial propane customers.”
Additionally, under 6 CFR 27.203(b)(3), “a facility need not include propane in tanks of 10,000 pounds or less” when calculating whether they have 60,000-lbs of propane for reporting purposes. Again, this exception to the general rule was made for propane based upon comments received from the agricultural community during the rulemaking process.
Furthermore, DHS went on to explain in a separate Federal Register notice that they would not be requiring the reporting of the other flammable chemicals in typical commercial grade propane (>87.5% propane content), noting that:
“In fact, it would not make sense to apply the release-flammable mixtures rule to the combination of chemicals that constitute the COI propane because that would largely negate the intended effect of the 60,000 pound STQ and the special STQ counting rule for the COI propane.”
Moving Forward
Neither Finstad, nor his sole cosponsor {Rep Costa (D,CA)} are members of either the House Homeland Security Committee or the House Energy and Commerce Committee to which this bill was assigned for consideration. This means that HR 1623 is unlikely to be considered in either committee. I think that there would be bipartisan opposition in both committees to extending CFATS exemptions to these facilities; it would undercut the whole purpose of the program.
Commentary
It is sad, that as of this date, that this is the only bill that has been introduced this session dealing with the CFATS program. The current authorization of the program runs out on July 27th, 2023. There has not even been a CFATS oversight hearing scheduled. I suspect that the program will be extended, but the lack of action to date would almost ensure that Congress will only be able to effect a short term extension of the program.