On December 18, 2014, President Obama signed into law the Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2014 (“CFATS Act”) Public Law 113-254 (6 U.S.C. § 621, et seq.), which recodified and reauthorized the CFATS program for four years. The CFATS Act established an Expedited Approval Program (EAP) as a voluntary option for high-risk chemical facilities assigned a final tier level of 3 or 4 to develop and submit Site Security Plans (SSP). The CFATS Act directed DHS to issue guidance that “identifies specific security measures that are sufficient to meet the risk-based performance standards” for facilities that choose to submit an SSP pursuant to the EAP. See 6 U.S.C § 622(c)(4)(B)(i). Along with the EAP SSP, the facility must submit a certification that, among other requirements listed in 6 U.S.C. § 622(c)(4)(C), the owner or operator has visited, examined, documented, and verified that the facility meets the criteria in the SSP. A sample certification is included in the Guidance.
DHS Guidance for the Expedited Approval Program
The DHS Guidance for the Expedited Approval Program was specifically developed to meet the requirements of 6 U.S.C. § 622(c)(4)(B) and must be used by each chemical facility that chooses to submit an EAP SSP. If a facility uses a security measure that materially deviates from a measure specified in the Guidance, then the facility’s SSP must identify the deviation for the specific security measure and explain how the new measure meets the relevant Risk-Based Performance Standards (RBPS). See 6 U.S.C. § 622(c)(4)(B)(ii). The EAP Guidance goes into effect on June 16, 2015.
This Guidance—and the prescriptive measures contained in the Guidance—are intended explicitly to apply to facilities that elect to participate in the EAP. The security posture of facilities submitting SSPs and Alternative Security Programs (ASPs) through the regular, non-prescriptive SSP/ASP process will continue to be evaluated against the RBPS in a holistic fashion. DHS will not apply the EAP Guidance in a prescriptive fashion to the SSPs and ASPs in the regular CFATS approval process.
Timelines for Participation in the CFATS Expedited Approval Program
The deadline for a Tier 3 or 4 facility to submit a security plan was established in the CFATS Act and is based on the date of the facility’s final tiering determination. Facilities assigned a final tier level of 3 or 4 prior to December 18, 2014 (date of CFATS Act’s enactment), that choose to submit an EAP SSP and certification must submit the SSP no later than November 13, 2015 (330 days after the enactment of the CFATS Act). Facilities that have been assigned final tier level of 3 or 4 after December 18, 2014, have until November 13, 2015, or 120 days after their assignment to Tier 3 or 4, whichever date is later, to submit an EAP SSP and certification. See 6 U.S.C. § 622(c)(4)(D). Further, any facility that elects to submit under the EAP must notify DHS of its intention to do so at least 30 days prior to submitting the SSP and certification. See 6 U.S.C. § 622(c)(4)(D)(iii). This notification can be made via the Department’s Chemical Security Assessment Tool (CSAT) system starting on June 16, 2015, or via letter sent to:
Director, Infrastructure Security Compliance Division
Office of Infrastructure Protection
Department of Homeland Security
Mail Stop 0610
245 Murray Lane
Washington, D.C. 20528
An EAP SSP can be submitted via CSAT starting 30 days after the notification has been received. The facility will have up to the EAP SSP due date to submit the required documentation.
For further questions about the Expedited Approval Program, please contact CFATS@hq.dhs.gov.