By Glenn Wicks, Esq. and Lindsay McGuire, Esq., The Wicks Group    January, 2008

The events of September 11th drew national attention to the deficiency in American infrastructure security. Congress responded in various ways, including by authorizing Federal regulation of high-risk chemical facilities for security reasons. In 2007, the Department of Homeland Security (“DHS”) published the Chemical Facility Anti-Terrorism Standards (“CFATS”) regulations. Under the regulations, any facility that possesses one or more chemicals of interest (“COIs”) must submit relevant information to DHS, through a “Top-Screen” submission, by January 22, 2008 or within sixty days of coming into possession of a COI. In this article The Wicks Group discusses these regulations, and what chemical facilities must do in order to meet requirements set forth by the DHS.

The events of September 11th drew national attention to the deficiency in American infrastructure security. Congress responded in various ways, including by authorizing Federal regulation of high-risk chemical facilities for security reasons. In 2007, the Department of Homeland Security (“DHS”) published the Chemical Facility Anti-Terrorism Standards (“CFATS”) regulations. Don’t let the name fool you: the regulations cover more than typical chemical facilities. The term “chemical facility” refers to any facility that possesses a chemical DHS considers potentially dangerous if targeted in a terrorist attack. Under the regulations, any facility that possesses one or more chemicals of interest (“COIs”) must submit relevant information to DHS, through a “Top-Screen” submission, by January 22, 2008 or within sixty days of coming into possession of a COI. Based on this information, DHS determines which facilities present a high security risk. These high-risk facilities must comply with CFATS, meaning that they must come into compliance with risk-based performance standards. Those facilities that are not designated as high-risk do not need to take any further action. The first step, however, is for any facility that possesses chemicals to determine if it is required to comply with the CFATS regulations.
The COI’s are identified at this DHS website location: http://www.dhs.gov/xlibrary/assets/chemsec_appendixafinalrule.pdf

Any facility, regardless of the nature of its business, that possesses a COI must comply with the first part of the CFATS regulations: registering to access the Chemical Security Assessment Tool (“CSAT”) and submitting the Top-Screen, which includes information regarding the facility, its chemical inventory, and its current security measures. This is the primary way that DHS identifies high-risk facilities. Less frequently, DHS will notify a chemical facility that it must complete the Top-Screen submission. If a facility is not contacted by DHS, it must consult Appendix A to the CFATS regulations to determine if it is required to submit a Top-Screen.

Appendix A lists the COIs, as well as the minimum concentration and amount of each that will trigger the registration and Top-Screen requirements. If a facility possesses even one COI in the minimum concentration and amount, it must satisfy these requirements. It may seem as if DHS is being overly cautious in setting the bar for registration and submission so low, but keep in mind that many facilities will not have to take any additional precautionary steps. Furthermore, registration and submission of the Top-Screen are not very difficult or time-consuming.

Registering to access the CSAT system requires a facility to provide information on the person or persons who will be involved in submitting the Top-Screen, including his/her name, country of citizenship, and domicile. There are three roles involved in submitting the Top-Screen: (1) the Preparer, who enters the Top-Screen data; (2) the Submitter, who submits Top-Screen data to DHS; and (3) the Authorizer, who assures DHS that the Submitter and Preparer are authorized to complete or submit the Top-Screen information. All three roles can be filled by the same person or by different people. There is also a fourth and optional role: the Reviewer, who reviews the information but cannot enter, edit, or submit it. The registration must also indicate how these roles will be organized within each facility. Companies reporting more than one facility should consult the CSAT User Registration Guide, which is available online at http://www.dhs.gov/xlibrary/assets/chemsec_csatuserregismanual.pdf, to evaluate their best organizational option. The registration form is available online at https://csat-registration.dhs.gov. It must be completed and signed then mailed or faxed to DHS.

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