Tuesday, January 15, 2008

So, your facility will not be regulated

The response that most facilities will receive to their Top Screen submission will be a letter from DHS explaining that their facility “has been determined not to present a high level of security risk.” (Appendix B, CSAT Top-Screen User Manual) This means that DHS will not require the facility to complete a Security Vulnerability Assessment or a Site Security Plan at this time. It does not mean that the facility is done with the CFATS regulations


Facilities have a responsibility to re-submit a Top Screen anytime there is a material change to their operations that could affect their status. Some of the items that could affect that status include:


·        The facility acquires a new chemical listed in Appendix A at or above the STQ for that chemical.

·        The facility has a substantial increase in the inventory levels of one of the chemicals reported in the previous Top Screen.

·        There is a change in the area surrounding the facility that would lead to a substantial increase in the number of people affected by the release of a COI from the facility.


Facilities are also going to have to keep an eye on the regulatory environment. Under the present law DHS can add chemicals to Appendix A or change the levels of the various STQ with no more effort than publishing a notice in the Federal Register. While a comment period for such a notice is not required, DHS has bent over backward in the past to ensure that such comments are received and reviewed. There is no telling what a change in legislation might require from previously unregulated facilities.


DHS could also determine that a change in the threat situation might justify the change in the risk ranking of facilities. The CFATS regulations {Section 27.200(b)(1)}specifically allow DHS to designate individual facilities or classes of facilities that may be required to submit a Top Screen. Such notification could be done by letter to individual facilities or by posting of a notice in the Federal Register. DHS could presumably re-designate a facility a High-Risk facility based on a previously submitted Top Screen based on a changed threat situation.


In short, facilities that completed the Top Screen and came up less than “High-Risk” cannot count on staying that way. They are going to have to continue to monitor the CFATS rules and the way DHS implements them.

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