Section 550 of the DHS Appropriations Act of 2007 grants the Department the authority to regulate chemical facilities that “present high levels of security risk.” Under this authority, in April 2007, the Department promulgated the Chemical Facilities Anti-Terrorism Standards (CFATS) regulation.
Facilities that may be required to comply with at least some provisions of the CFATS regulation will largely fall into the following categories:
- Chemical manufacturing, storage and distribution;
- Energy and utilities;
- Agriculture and food;
- Paints and coatings;
- Plastics; and
UPDATE: Earlier this year, the Department of Homeland Security (DHS) temporarily suspended the requirement to submit Chemical Facility Anti-Terrorism Standards Top-Screens and Security Vulnerability Assessments (SVA) in order to allow for a phased rollout of the new Chemical Security Assessment Tool (CSAT 2.0) surveys and enhanced risk tiering methodology. On October 1, 2016, the requirement to submit Top-Screens was reinstated. Chemical facilities of interest that have not previously submitted a Top-Screen, but which have come into possession of reportable amounts of COI, must submit a Top-Screen within 60 days. Additionally, in the coming months, DHS will be reaching out directly to CFATS chemical facilities that have previously submitted Top-Screens to DHS and require that they submit a new Top-Screen using CSAT 2.0. However, facilities may choose to proactively resubmit a Top-Screen once the new tool is available and prior to receiving the individual notification.
To determine which chemical facilities meet the CFATS criteria for high-risk chemical facilities, the Department developed the Chemical Security Assessment Tool (CSAT) Top-Screen, an easy-to-use on-line questionnaire that must be completed by facilities that possessed any chemical on the CFATS Appendix A: DHS Chemicals of Interest List at or above the listed Screening Threshold Quantity (STQ) for each chemical on the day Appendix A was published (November 20, 2007).
In addition, any facility that comes into possession of any listed chemical of interest at or above the applicable Screening Threshold Quantity after November 20, 2007, must complete and submit a Top-Screen.
The Department may also notify facilities—either directly or through a Federal Register notice—that they need to complete and submit a Top-Screen.
- Facilities regulated pursuant to the Maritime Transportation Safety Act (MTSA). The Department will apply the MTSA exemption to facilities regulated under 33 CFR Part 105, Maritime Facility Security regulations. Part 105 of Title 33 of the Code of Federal Regulations is the only regulation that imposes the security plan requirements of 46 U.S.C. 70103 on maritime facilities. If the facility site includes both a facility regulated pursuant to the Maritime Transportation Security Act of 2002, Public Law 107-295, as amended, and a facility not regulated pursuant to the Maritime Transportation Security Act, the facility shall select “Partially” when filling out the statutory exemption page of the Top-Screen. The facility should then complete the remainder of the Top-Screen for the facility not subject to Maritime Transportation Security Act.
- Public Water Systems, as defined in the Safe Drinking Water Act. If a facility contains a unit that is a Public Water System regulated under the Safe Drinking Water Act, but also contains components that are not so regulated, the facility shall select “Partially” when filling out the statutory exemption page of the Top-Screen. The facility should then complete the remainder of the Top-Screen for the portion of the facility that is not exempted (i.e., the portion of the facility that is not regulated under the Safe Drinking Water Act).
- Water Treatment Facilities, as defined in the Federal Water Pollution Control Act. If the facility site contains Treatment Works regulated under the Federal Water Pollution Control Act, but also contains a facility or portion of a facility not so regulated, the facility shall select “Partially” when filling out the statutory exemption page of the Top-Screen. The facility should then complete the remainder of the Top-Screen for the portion of the facility that is not exempted (i.e., the facility or portion of the facility that is not regulated under the Federal Water Pollution Control Act).
- Facilities owned or operated by the Department of Defense or the Department of Energy.
- Facilities subject to regulation by the Nuclear Regulatory Commission (NRC). The Department will apply the NRC statutory exemption only to facilities where NRC already imposes significant requirements and regulates the safety and security of most of the facility, not just a few radioactive sources. For example, a power reactor holding a license under 10 CFR Part 50, a special nuclear material fuel cycle holding a license under 10 CFR Part 70, and facilities licensed under 10 CFR Parts 30 and 40 that have received security orders requiring increased protection, are all exempt from 6 CFR Part 27. A facility that only possesses small radioactive sources for chemical process control equipment, gauges, and dials is not exempt.
The Transportation Security Administration is the lead component within the Department for regulating the security of transportation facilities such as railroads and natural gas pipelines. The Department does not currently require railroad facilities that possess threshold quantities of chemicals of interest (COI) to complete the Top-Screen.
For chemical facilities of interest, the CFATS regulation requires the reporting of threshold quantities of COI found within any rail car that is detached from motive power. If the COI is attached to motive power, however, the COI does not need to be reported. The regulation requires the reporting of threshold quantities of theft/diversion and sabotage COI within any rail car at the facility, whether or not the rail car is attached or detached from motive power.
Covered chemical facilities with a pipeline within their boundaries must also identify the pipeline as an asset and address it, as appropriate, in the facility's Security Vulnerability Assessment/Site Security Plan.
Facilities Shipping, Selling, or Distributing COI
Keeping chemicals out of the hands of those who would use them to do harm is a responsibility the Department shares with facility owners and operators, employees, and emergency responders. DHS regularly engages with stakeholders to identify how to reach new segments of the population and ensure that those who hold a CFATS Chemical of Interest (COI) are aware of their obligation to report.
The Receiving a COI flyer was created in response to stakeholder feedback to the Department as a voluntary tool facilities can use when shipping, selling, or distributing a COI from their facility.
The flyer will help facility customers and partners:
- Learn about the CFATS program
- Understand who is included in the CFATS regulation
- Become aware of their responsibility to report a COI to DHS
To download the flyer for print or electronic distribution, please refer to:
CFATS Penalty Policy
The CFATS Penalty Policy outlines the policies and procedures that the Department’s Infrastructure Security Compliance Division (ISCD) follows to issue an Administrative Order (A Order) and an Order Assessing Civil Penalty (otherwise known as a B Order) to a chemical facility found to be in violation of the CFATS (6 CFR Part 27) and the Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2014 (CFATS Act of 2014), Pub. L. No. 113-254, (6 USC § 621, et seq.). Both A Orders and B Orders may be appealed pursuant to the procedures set forth in 6 CFR Part 27 Subpart C.
Compliance failures are divided into the following categories:
- Failure to File Violations
- Site Security Plan (SSP)/ Alternative Security Program (ASP) Deficiencies (generally found during the authorization and approval process) and/or SSP/ASP Infractions (generally found during Compliance Inspections)
- Chemical-terrorism Vulnerability Information (CVI) Violations
For further information, please refer to:
- Policy for Assessing Civil Penalties Under the Chemical Facility Anti-Terrorism Standards
- The Penalty Policy Overview Fact Sheet
CFATS Tip Line
CFATS Chemical Facility Security Tip Line: 877-394-4347 (877-FYI 4 DHS) or email CFATSTips@hq.dhs.gov.
You may report concerns on voicemail anonymously. If you want a return call, leave your name and number. Calls to this tip line involve the CFATS regulation at your facility or another facility.
National Infrastructure Coordinating Center: 202-282-9201. If a potential security incident has already occurred, call this number to report it. Call 911 or contact your local FBI field office instead if this is a security emergency or terrorist incident.
For more information about the CFATS program, please contact CFATS@hq.dhs.gov.