September 6, 2018 Chemical Industry Regulations

Chemical Facility Anti-Terrorism Standards Are Moving Forward: Are You Keeping Pace?

The U.S. Department of Homeland Security (DHS) has been active lately regarding the Chemical Facility Anti-Terrorism Standards (CFATS). DHS has just concluded a series of industry outreach seminars for facilities regulated under CFATS. Of more significance is that DHS is now working on ensuring that the program continues, as the congressional authorization for this program expires in January 2019. There is a common threat to those activites keeping DHS busy these days, one that industry must keep in mind. CFATS has matured, and the program has been successful. Therefore, changes to enhance and improve the program, some of which have commenced, are definitely in the future of CFATS.

What is CFATS?

CFATS regulates the security at “chemical facilities” in diverse industries, such as chemical manufacturing, storage and distribution; energy and utilities; agriculture and food; paints and coatings; pharmaceuticals; explosives; mining; electronics; plastics; and healthcare. DHS screens all covered facilities, and if it deems a facility a high risk, the department assigns the facility to a risk tier that subjects the facility to a range of regulatory requirements.

Change in risk?

Over the past year, DHS has conducted a wholesale review of all regulated facilities. Over 38,000 facilities submitted screening-level information to DHS, and to date, over 3,300 were deemed “high risk” and are subject to regulation. DHS has not yet concluded this review. Consequently, it is possible that a facility can still change risk tiers; almost half of facilities did. That change can mean required changes to a security plan and implemented security measures in order to stay in compliance. These new compliance obligations must be addressed.

More Inspections

DHS has to verify and ensure compliance with CFATS. While this is particularly true if tiering changes, DHS can and has done compliance inspections. Over time, DHS has built up its cadre of inspectors. It has approximately 130 inspectors assigned to 10 regions (that corresponds to the 10 Federal Emergency Management Administration regions). A more local presence means that inspectors get to know facilities and personnel better. Having more inspectors also gives DHS a greater ability to inspect. Facilities should recognize that CFATS is not a program run out of Washington, D.C., by bureaucrats; there are DHS personnel on the ground who will come out to a facility to see what is happening there. Facilities should make sure that their site security plans are fully implemented. If a facility has some difficulty, DHS has encouraged outreach to them before they discover a problem, as they would rather help a facility come into compliance rather than take enforcement action.

A More Efficient Inspection Process

DHS has also offered companies an opportunity to streamline and simplify the inspection process. DHS acknowledges that many companies have standard operating procedures regardless of the location of individual facilities. Therefore, DHS allows for a corporate approach to inspections. Upon request, DHS will assign an inspector to work with a company on those compliance elements that are uniform across all regulated facilities in the company. This maximizes efficiency and allows an inspector to truly get to know a company and how it operates. Companies need to be aware of this option and decide if the corporate approach will best work for them.

Personnel Surety

Another aspect of CFATS compliance where DHS allows for flexibility but also has new elements in the future is personnel surety — ensuring that facility personnel are appropriately vetted for security risks. All facilities need to perform background checks for employees, including verification of identity, criminal and work history, and work authorization. However, vetting for terrorism-related concerns needs to be run through DHS. To date, only the highest two tiers have needed to participate in the Personnel Surety Program. DHS has allowed facilities to either submit names directly to DHS for vetting though its Chemical Security Assessment Tool portal or allow the use of a Transportation Worker Identity Credential in various fashions. Although DHS has found that most facilities have chosen just to submit names for vetting, DHS does allow for these various compliance options. This now is of greater significance because DHS is preparing to launch the Personnel Surety Program for the lower two risk tiers. The vast majority of regulated facilities are in these two tiers, so once approved, this expansion of the program will affect many facilities.

Moving Forward

CFATS is now a fully implemented regulatory program. Accordingly, DHS’s focus will now be turning from implementation to ensuring compliance and maximizing efficient manners of guaranteeing compliance. Additionally, DHS’s performance in implementing CFATS has been under scrutiny as CFATS needs congressional action this year to stay in existence. Any time Congress takes action, changes can result. Industry must keep abreast of regulatory changes and the new tools DHS provides and be aware of what might happen in Washington. Strategic determination as how to best use the DHS resource available will help companies ensure that they stay in compliance with CFATS.

JUDAH PRERO is counsel in the Environmental group at Sidley Austin where he focuses on chemical management laws and regulations, including the Toxic Substances Control Act, Chemical Facility Antiterrorism Standards, the Occupational Health and Safety Act and the Clean Air Act’s Risk Management Plan program. Judah has 20 years of government and private sector experience in environmental, health, safety and security law related to chemicals manufacturing, and those industrial processes utilizing chemicals.

This article has been prepared for informational purposes only and does not constitute legal advice. This information is not intended to create, and the receipt of it does not constitute, a lawyer-client relationship. Viewers should not act upon this without seeking advice from professional advisers. The content therein does not reflect the views of the firm.

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