Early this morning an anonymous reader (from the tone of the comment, someone of some standing in ISCD) posted a comment objecting to two statements that I had made in an earlier blog about the delisting of 1670 CFATS facilities because they eliminated DHS chemicals of interest (COI) on site and another 700 because they reduced the volume of COI on site.
Removing Facilities from CFATS Coverage
I stated that “DHS has done nothing to confirm these reported changes”. The reader took exception to that stating:
“Inspector teams were sent in a significant number of cases to inspect and verify whether the facility had reduced or removed their chemical holdings according to their formal request to be retiered. These teams documented what they found and these analyses were used by DHS HQ in making the final decision on whether to retier the subject facility.”
If this is true (and I have no way of confirming or disproving this statement), this is the first public disclosure of the methodology that ISCD has been using to remove facilities from the ‘list’ of facilities at high-risk of terrorist attack. While some could quibble with the ‘in a significant number of cases’ instead of ‘in all cases’ there are no standards for removal from (or inclusion on for that matter) of the list of covered facilities in either legislation or regulation; this is left by Congress to the discretion of the Secretary of DHS. And it could be argued that since the Department accepts the initial Top Screen information without independent verification that it should accept modifications to that data by the same standard.
DHS has long taken the justifiable stand that it will not disclose the specific standards by which they determine that a facility in possession of a screening threshold quantity (STQ) of a COI presents a high level of security threat. With that oft stated policy it is not unreasonable that they will not disclose the same standards for removal of facility from that list. It is unreasonable, however, for ISCD not to publish the process by which they will collect and verify the information necessary for removal from CFATS covered status.
Currently, the sole bit of information publicly available about the ‘redetermination’ process is found in 6 CFR §27.205(b):
“(b) Redetermination. If a covered facility previously determined to present a high level of security risk has materially altered its operations, it may seek a redetermination by filing a Request for Redetermination with the Assistant Secretary, and may request a meeting regarding the Request. Within 45 calendar days of receipt of such a Request, or within 45 calendar days of a meeting under this paragraph, the Assistant Secretary shall notify the covered facility in writing of the Department's decision on the Request for Redetermination.”
Oh, yes, there is also a frequently asked question on the CFATS Knowledge Center web site (FAQ # 1557) which provides the name and address of the person to whom the letter requesting a redetermination should be sent.
Not having published a process for the review of redetermination requests, I am more than a little surprised that there haven’t been any law suits filed in cases where a redetermination request has been denied. There are two reasonable explanations why that isn’t the case. First the letter from the Assistant Secretary does such a good job explaining the situation that the facility is forced by good sense to acquiesce, or secondly there have not been a significant number of redeterminations declined.
Changes in Concentrations
The reader also takes exception to my comments in the original blog post about minor changes in concentrations being reasons for redeterminations. The reader responded:
“While it is true that some facilities reduced the concentration, somtimes to a minor degree and other times significantly - the fact is, DHS established a threshold of concentration that was deemed significant, not one that below which posed zero risk. CFATS was designed to regulate high risk sites, not all sites that pose a risk. Therefore a threshold had to be established and followed.”
The reader raises a legitimate issue. In establishing a standard where there is not a clearly discrete situation; where there is a continuum where something must be determined to either fit or not fit a category; a line in the sand must be drawn. We can argue that the discrete difference between two items on either side of the line is nearly indistinguishable, but that will be true for any two points along the line.
Still, having said all of that, it still seems to me that the purpose of the CFATS regulations is somewhat compromised when a large sector of industry changes concentrations of aqua ammonia from 20% to 19% just to avoid coverage of the CFATS regulations. Of course if DHS were to just change the concentration in Appendix A to 19%, many of the distributors and users will just change to 18%; so there is no easy answer for coverage for new facilities.
Facilities that are already covered by CFATS do not have to be removed from the system if they simply change concentrations. DHS should make a positive determination that the change in concentration for an existing facility actually changes the risk below some minimum level before taking action to remove the facility from coverage. If that is what DHS is doing, so much the better.
I didn’t specifically address reduced inventories in my earlier blog, nor did my anonymous reader in the comment posted this morning, but any ISCD procedure for adjusting CFATS status or tier ranking needs to take this into account. The major problem with reducing inventory levels to below STQ values to be removed from the CFATS program or to some (other) arbitrary level to reduce tier rankings, is that there is no way to ensure that the inventory doesn’t drift above that level at some future point in time.
I would like to suggest that before ISCD reduces a tier ranking or removes a facility from CFATS coverage due to an inventory reduction plan, they should require a facility to submit a plan for temporary security measures that would be put into place when the inventory raises above the STQ or tier raising threshold. Along with the required Top Screen submission for an increase in inventory levels, the facility would notify ISCD that the agreed upon security measures are in place and inspectable.
Again I am happy to hear that ISCD has a procedure in place to ensure that there are adequate review and verification procedures in place to deal with requests for re-determinations of CFATS status or tier ranking. I would be much happier if the notification of the existence of that procedure had come from someone other than an anonymous source taking me to task on this blog. A published procedure or policy would be most appropriate, but even an article on the CFATS Knowledge Center would be better than a brief anonymous statement.