Once again, since I have gone to weekly reporting on these updates, the new/updated FAQ have been few and far between. Last week there was only one addition to the extensive DHS FAQ page, but what a doozy. The question is:
· 1557: “What should I do if I think my facility was incorrectly determined to be high-risk or received an incorrect preliminary risk-based tier determination?”
Questions about High-Risk Designation
It is almost inevitable that a large number of facilities are going to have questions about their inclusion on the high-risk chemical facility list or their tier ranking. DHS is unwilling to share the details of their decision making process with the chemical facility community for security reasons. This does insure that there will be facilities that do not understand how they were included, especially since there are a large number of facilities on the list for theft/diversion COI not the more obvious release COI.
Questions about Tier Rankings
Some facilities are going to be surprised about their low tier ranking (see: “CSAT Tier Rankings”), though they are unlikely to register an official complaint. Some facilities will not understand their high ranking. Others will want their tier ranking lowered to allow for additional time to prepare their Site Security Plan or to lower scrutiny (and perhaps expense) of their security measures.
In any case, there are three options that a facility has when it has questions about its high-risk designation or tier ranking:
· Suck it up and deal with it (an unlikely response), or
· Request an explanation, or
· Request reconsideration.
DHS Consultation
The CFATS regulations {Section 27.120(c)} allow any covered facility to request ‘consultation or technical assistance’ from DHS. I doubt that such a consultation will provide the facility with a detailed explanation of how their designation or tier ranking came about. DHS can certainlybe expected to inform the facility what items in its Top Screen submission need to be addressed in their SVA, perhaps providing more detailed information than included in their designation letter.
Request for Redetermination
If there has been a ‘material change’ in the facility situation (e.g. elimination or reduction of COI inventories) that might allow for the removal of the high-risk determination or lower the tier ranking, CFATS {Section 27.205(b)} allows for the facility to request that the new information be reviewed. DHS is given 45 days to review the request and make a final determination on the status.
NOTE: Do Not reduce your chances of a favorable re-determination by failing to properly mark and secure any Chemical-terrorism Vulnerability Information (CVI) in your submission. See the CVI Procedures Manual for details.
No Changes to the SVA Deadline
Neither of these requests will, by themselves, result in any changes in the deadlines for completion of an SVA. The facility should continue work on their SVA while these requests are under consideration. Ultimately a change in tier ranking will move the deadline and removal of the high-risk designation will remove the SVA requirement.
A request for an extension of the deadline might work. Do not rely on the submission of a Request for Redetermination or a Request for Consultation as the justification for an extension. The regulation specifically states that such requests ‘do not stay or extend any deadlines’. This means that DHS would be justified in turning down a request for extension that uses such a request as the sole justification.
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