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The Chemical Facility Anti-Terrorism Standards (CFATS) rule provides broad authority to DHS to enter, inspect, and audit the property, equipment, operations, and records of facilities that DHS determines present high levels of security risk. The recent DHS appropriations bill provided additional funds to DHS to increase its full-time personnel; and DHS is using some of these funds to significantly expand its CFATS inspection team.
As of December 21, 2009, DHS has notified almost 3,000 facilities across the nation of their final tiering assignment under CFATS. It is estimated that over 6,000 are covered by this regulation. DHS is currently reviewing site security plans (SSPs) submitted by the highest tiered facilities; SSPs for the facilities will be due on a rolling basis, 120 days from receipt of their notification.
The CFATS regulations contemplate that DHS will inspect a covered facility after it issues its preliminary approval of the facility's SSP. DHS has stated that facilities that have successfully implemented their approved SSPs and have passed an inspection will be considered as compliant with the required performance standards.
DHS has indicated that it will inspect high-risk facilities at “regular intervals” with Tier 1 (the highest-tiered) facilities being inspected first “and more frequently.” DHS has also acknowledged that CFATS places some boundaries upon inspection activities including:
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Inspections may be conducted only “at reasonable times and in a reasonable manner” except in exigent circumstances. DHS has indicated that inspections will typically be conducted from 9-5 but retains flexibility to inspect outside of business hours.
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Inspections may only be conducted by "personnel duly authorized and designated for that purpose." DHS has recently hired 30 additional CFATS inspectors, bringing the total number of inspectors to around 100.
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DHS will typically provide 24-hour advance notice to the covered facility unless specific security concerns demand immediate attention, but DHS has stated that its inspectors may also inspect a facility at any time based on new information or security concerns.
The CFATS rule permits a DHS inspector to gather information by “reasonable means” including interviews and statements, copying files, and photography, video and audio recording. An inspector may also require a facility to demonstrate the efficacy of a given security measure and make available its own audit records. CFATS does not limit the scope of an inspection to the measures covered in the facility’s SSP, but DHS has stated that it has “no intention of inspecting areas that are unrelated to security.”
In planning for a CFATS inspection, a covered facility should prepare. Among other things, the facility should consider adopting inspection procedures and policies with the direct involvement of the company’s General Counsel or outside counsel in order to maintain the legal protections offered by attorney-client privilege. As part of this process, a facility may consider establishing a corporate or facility point-of-contact (POC) who may serve as an inspection coordinator charged with managing inspection activities. The facility should also consider staging a practice inspection and should fully review and verify CFATS records submitted to DHS including the Top-Screen, Security Vulnerability Assessment and SSP. A facility is obligated to notify DHS of any “material modifications” which may have occurred since the submission of a record.
DHS has indicated that it is likely to bring a team of inspectors to a CFATS facility. When the corporate or facility POC greets the DHS inspectors, he or she should verify the inspectors’ credentials and establish the logistics and parameters of the inspection. Facility safety protocols should be addressed, and the General Counsel should be notified.
During an inspection, a facility should have pre-designated personnel available to accompany the inspectors, take notes and ensure the protection of confidential information. At the end of an inspection, a facility should request a closing interview in order to get an understanding of the inspectors’ observations and preliminary conclusions. Notes, comments, photographs or any other information developed during the inspection by the DHS inspectors or by facility personnel should be provided to the General Counsel or outside counsel.
Industry should continue to monitor CFATS reauthorization legislation that may make certain changes to DHS’s CFATS inspection authority including express authority to make unannounced inspections of the highest tiered facilities and the requirement that an employee representative be present during site inspections.
Content contributed by Chris Amantea, Esq. and Maida Oringher Lerner, Esq. Chris Amante, partner at Hunton & Williams can be reached at camantea@hunton.com. Maida Lerner, counsel at Hunton & Williams, can be reached at mlerner@hunton.com.
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