Earlier this week in my “Top Screen deadline nears” blog I mentioned a letter that had been published on the DHS Web Site explaining a Top Screen filing extension (of indeterminate length) that DHS was giving to agricultural operations. Yesterday DHS published the same letter in the Federal Register as part of an official “Notice to Agricultural Facilities About Requirement To Complete Chemical Security Assessment Tool Top-Screen”.
Interestingly, this notice contains a new bit of information not provided in the original letter or mentioned on the DHS web site; this is not an all-encompassing extension. The notice includes this:
“For purposes of clarification, this time extension does not apply to agricultural facilities that are required to submit a Top-Screen, because they possess a COI (e.g., propane) at or above the applicable STQ for use as a fuel (e.g., for heating) at such facilities.”
Propane may not be that much of a problem. It has an STQ of 60,000 lbs. Furthermore, propane stored in tanks holding 10,000 pounds or less need not be counted in the STQ calculations ( 6 CFR § 27.203(b)(3)). Since these rules were specifically crafted to exempt agricultural users of propane, there should be a relatively small number of facilities having to complete the Top Screen based on the presence of this particular COI.
Unfortunately, propane is not the only fuel included in the Top Screen. In my earlier “Top Screen User’s Guide: Release COI” blog I noted that fuels, including gasoline and diesel, that are stored in above ground tanks (in excess of 10,000 lbs.) have to be reported on the Top Screen (pages 34 and 36 of the CSAT Top-Screen User Manual). This fuel provision may catch a larger number of agricultural operations that have significant fuel storage on-site for their equipment.
This brings up an interesting problem. If a facility received the original letter (“On December 21, 2007, the Department issued this letter to various interested parties.”) from DHS and relied on that letter to not submit a Top Screen (even though it possessed a fuel in excess of the STQ), would it be liable to fines of up to $25,000 per day after the January 22nd deadline? If another facility similarly relied upon the copy of this letter posted on the DHS web site, would it be liable for those fines? Technically the answer would be “Yes” since the Federal Register is the official publication of rules and regulations for the United States Government.
In any case, DHS is making the Top Screen more complicated by making these changes on the fly. I would like to think that the government will take this into account when they start to look at enforcement actions on facilities that did not meet the January 22nd deadline for submission of the Top Screen.
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