The Department of Homeland Security ("DHS") cast a wide net recently in its continuing efforts to enhance the security of our Nation. On November 2, 2007, the DHS issued its final regulations for lowering the risk posed by chemical facilities. Unfortunately, the regulations now appear to extend beyond just chemical facilities and may now affect facilities in the agricultural, beverage, food, mining, and pharmaceutical industries. The DHS has defined a chemical facility to mean "any establishment that possesses or plans to possess, at any relevant point in time, a quantity of a chemical substance determined by the Secretary to be potentially dangerous or that meets other risk-related criteria identified by the Department."
The DHS has identified 325 chemicals that it finds present a current danger to the security of the United States due to release, theft, or sabotage of such chemicals. These include propane, ammonium nitrate, and chlorine. The DHS has also established Screening Threshold Quantities ("STQs") for each of the 325 identified chemicals. Any facility that now possesses, or plans to possess, such STQs should consider itself subject to the new regulations. The DHS published the final list of chemicals and their STQs in Appendix A to the Chemical Facility Anti-Terrorism Standards ("CFATS") on November 2, 2007. A copy of Appendix A is available at http://www.dhs.gov/xnews/releases/pr_1193971111885.shtm.
In issuing the new regulations, the DHS stated that "any facility that possesses (or later comes into possession of) the listed chemicals in quantities that meet or exceed the STQ for any applicable security issue must complete and submit a Top-Screen." The Top-Screen is an on-line assessment tool that the DHS will use, based on information submitted by the facility, to determine the category of risk associated with the particular operation. Appendix A became effective with its publication in the Federal Register on November 20, 2007. The deadline in the Chemical Facilities Anti-Terrorism Standard ("CFATS") rule for submission of Top-Screens required by 6 CFR § 27.210(a)(1)(i) will be 60 calendar days from the date of publication of Appendix A in the Federal Register. Therefore, those required to submit "Top-Screens" must do so by January 19, 2008. Additional information about the CFATS may be found at http://www.dhs.gov/chemicalsecurity.
The DHS is casting a wide net with these standards and its reach is not yet fully understood. Any business with industrial chemicals on site should carefully review Appendix A. Consult legal counsel regarding any questions about the application of these new regulations and Appendix A.
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