CFATS REGULATORY OVERVIEW

Congress continues to debate chemical security and significant uncertainties remain, particularly with regard to Inherently Safer Technology (IST) and Maritime Transportation Security Act (MTSA) - CFATS "harmonization." While a number of competing chemical security bills were introduced in both the House and Senate in 2010 and 2011, Congress ultimately extended CFATS in its current form through October 2012.

• CFATS establishes a Chemical Security Assessment Tool (CSAT) that comprises four elements
  
  (1) User Registration;
  (2) Top-Screen;
  (3) Security Vulnerability Assessment; and
  (4) Site Security Plan.



• The failure to complete a Top-Screen in a timely manner may result in a presumptively high-risk determination, thereby forcing a facility to overcome the presumption.
  
  
• The Security Vulnerability Assessment has five components:
  
  (1) Asset Characterization;
  (2) Threat Assessment;
  (3) Security Vulnerability Analysis;
  (4) Risk Assessment; and
  (5) Countermeasure Analysis.
  
  
• The Site Security Plan must address the vulnerabilities identified in the Security Vulnerability Assessment and identify and describe how each security measure will, in fact, meet the applicable Risk-Based Performance Standards.



• The Risk-Based Performance Standards are the essence of CFATS and, among other things, include:
  
  (1) Access Control;
  (2) Credentialing;
  (3) Cybersecurity;
  (4) Recordkeeping, Training, and Emergency Response;
  (5) Testing of Security Equipment ;
  (6) Reporting of Security Incidents and Suspicious Activity
  (7) Deterring, Detecting, and Delaying



• DHS will review and approve (or deny) all Security Vulnerability Assessments and Site Security Plans.



• Facilities subject to CFATS must keep detailed security records for 3 to 6 years.



• Penalties for violations of CFATS may include a fine, not to exceed $25,000 per day, and, in extreme cases, cessation of operations.



• Challenges to CFATS will be heard by a neutral adjudicator. There is also an appeal process, the conclusion of which represents final agency action that allows a party to elevate the matter to a U.S. District Court.