United States: Homeland Security Alert: DHS Triggers Reporting Requirement With List Of "Chemicals Of Interest"

On November 2, 2007, the Department of Homeland Security (DHS) published its finalized list of "chemicals of interest," thereby triggering the 60-day reporting requirement under the DHS’s Chemical Facility Anti-Terrorism Standards (CFATS),¹ for myriad businesses, colleges and universities that possess any of the identified chemicals at or above the screening threshold amounts.

In 2005 and 2006, the Secretary of Homeland Security identified the need for legislation authorizing DHS to develop and implement a framework to regulate the security of high-risk chemical facilities in the United States. In October 2006, Congress passed and the President signed the Department of Homeland Security Appropriations Act of 2007, which in Section 550 authorizes DHS to require high-risk chemical facilities to complete security vulnerability assessments, develop site security plans and implement risk-based measures designed to satisfy DHS-defined risk-based performance standards. The Act also authorized DHS to enforce compliance with the security regulations, including conducting audits and inspections of high-risk facilities, imposing civil penalties of up to $25,000 per day, and shutting down facilities that fail to comply with the regulations.

In April 2007, DHS published its Interim Final Rule (IFR) on its CFATS that included an interim list of chemicals of interest and their corresponding screening threshold quantities. After a period of public comment, the DHS finalized the list of chemicals of interest, which is published as Appendix A to 6 C.F.R., Part 27. This final list is also available at: http://www.dhs.gov/xlibrary/assets/chemsec_appendixa-chemicalofinterestlist.pdf.

Appendix A lists approximately 300 chemicals of interest and includes chemicals such as chlorine, propane and anhydrous ammonia as well as specialty chemicals such as arsine and phosphorus trichloride. Although DHS identified chemicals in the specific amounts for preliminary screening based on their potential to create significant human life or health consequences, the identified chemicals include many of the most commonly used chemicals in manufacturing, technology and processing. Given the breadth and nature of the chemicals identified in Appendix A to the regulations, DHS has estimated that as many as 50,000 facilities will probably be subject to an initial screen to determine if they are a "high-risk facility." Indeed, DHS has recognized that CFATS will reach facilities not traditionally considered part of the chemical sector, including colleges and universities. This is because the regulations apply to any "facility" that possesses chemicals listed in Appendix A in quantities at or above the screening threshold quantities.

The 60-Day Obligation to Perform a "Top Screen"

Under CFATS, if any facility possesses a chemical of interest at or above the screening threshold quantity, the facility must complete DHS’s online Chemical Security Assessment or "Top Screen" within 60 calendar days of the publication of a final Appendix A or within 60 calendar days of coming into possession of the listed chemicals at or above the listed screening threshold quantity. The Top Screen is completed by logging on to DHS’ computerized Chemical Security Assessment Tool (CSAT). Once logged on to the CSAT system, the user will be asked a series of questions regarding, among other things, the chemicals manufactured, processed, used, stored at or distributed by the facility in order to help DHS to determine if the facility qualifies as "high risk." DHS will determine risk by considering the types and quantities of chemicals at a particular facility, the vulnerabilities that could be exploited to do harm to the facility or the surrounding community, and the potential consequences to human life and the nation’s economy. Facilities can register to use the CSAT Top Screen here.

Based on the results of the Top Screen, DHS will place the facility into one of four risk-based tiers with tier 1 representing the highest risk and tier 4 representing the lowest risk. Facilities that fall into one of the top three tiers will be required to complete a Security Vulnerability Assessment, which will provide additional information to enable DHS to evaluate specific security concerns, including off-site release, theft or diversion, and sabotage or contamination. In addition, "high-risk" facilities must also develop Security Site Plans, which must describe security measures (both physical and procedural) in place as well as the measures that a facility plans to implement in order to fulfill the applicable risk-based performance standards that DHS will identify for each facility.

In order to ensure compliance, businesses, colleges and universities should review the Appendix A list of chemicals of interest to determine if any of their individual facilities possess any of the chemicals of interest in amounts above the stated thresholds. If so, each facility must register online with DHS to obtain a username and password to complete the Top Screen assessment. It is important to remember that even if a business does not fall within the DHS’s chemical regulations, it is advisable from an insurance and liability standpoint for a business to routinely assess the vulnerabilities of and risks to its facility, employees and operability.

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