I moderate comments on this blog, but I don’t try to control much in the way of content beyond keeping out obvious spam. I’m a firm believer in free and open discussion of varying points of view and if the comment is interesting enough to me, I’ll respond in kind in a post like this. Less frequently a misinformed comment will bring out the teacher in me and I’ll provide a quick, informative update. The recent anonymous comment on my post about S 814 falls into the latter category.
CFATS Top Screen Compliance
After a complimentary salutation the writer makes the following statement:
“If I understand correctly it seems that DHS has had less than 200 facilities comply with CFATS Top-Screen.”
If this commentor has been getting his CFATS news from the raft of articles about the West Fertilizer explosion, one could forgive the reader for assuming that there are a massive number of facilities ignoring the CFATS mandate. Actually over 40,000 facilities have filed Top Screens since the program’s start in 2008. The vast majority of these submissions made it clear to the ISCD evaluators that the facilities did not meet the requirements for being declared a facility that was at high-risk of terrorist attack.
I’m not sure where the ‘200’ number in the comment comes from, it hasn’t been reported in any of the articles that I have seen to date. If I had to make an informed guess, and assuming that the number had some basis in fact, I would guess that the 200 would be the number of potentially covered facilities that had missed filing a Top Screen. That is not a fact, just a supposition based upon the unwarranted assumption that the comment was based in even a small measure of truth.
Top Screen Compliance
The commentor goes on to ask for my opinion on how ISCD could go about ensuring compliance with the Top Screen requirement. Ignoring the incorrect assumption about the level of non-compliance, this is a very good question. I did note in the original post that there are tools available in the CFATS regulations that could be used to encourage Top Screen submission.
What is missing though is an effective mechanism for identifying non-compliant facilities. There is no central listing of chemical facilities in possession of one or more of the 300 plus DHS chemicals of interest. If there was, there would be no necessity for facilities to complete Top Screens in the first place. Voluntary compliance is expected to get the vast majority of affected facilities to comply with the Top Screen requirements.
Most of the non-complying facilities will be in that status because of their misunderstanding of the CFATS requirements. Incidents like the West Fertilizer explosion will periodically raise the issue in the public consciousness and a number of new facilities will become aware of the legal requirement and move into compliance. Unfortunately, there will never be 100% compliance with any regulatory regime and there will never be a way to identify all of the non-compliant facilities. That is just a fact of life.
Security Plan Effectiveness
The final question raised by the commentor addresses a completely different matter, how DHS will go about evaluating the effectiveness of the submitted security plans. The simple answer is that DHS has over 100 chemical security inspectors that will visit each facility to both evaluate how well the facility plans to protect itself and, separately, how well the facility implements that plan.
A more realistic response is that the Department is still in the process of answering questions about the effectiveness of the first part of that assessment and many of those answers are currently suspect. There have been some serious shortcomings identified and ISCD is in the process of correcting those deficiencies. The regulated community hopes that the lessons learned in the first phase of the security program review will inform the implementation of the second half.
Hopefully within the next six months or so we will be able to begin the evaluation of how well they adapt their response to the currently identified problems.