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.
For more information about the CFATS program, please contact CFATS@hq.dhs.gov.
- 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 Department does not currently plan to regulate railroad facilities that are used to store large quantities of chemicals or materials on the DHS chemical of interest list in rail cars and does not request that railroads complete the Top-Screen.
Likewise, the Department has no intention at this time of requiring long-haul natural gas pipelines to complete the Top-Screen; however, chemical facilities otherwise covered by this regulation and with a pipeline within their boundaries must identify the pipeline as an asset and address it, as appropriate, in the Site Security Plan.
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 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.