Tuesday, August 3, 2010

Agriculture Survey

Last week I talked a bit about the mechanics of the new Agriculture Survey that DHS is asking about 1200 high-risk chemical facilities to complete. Now I want to take a closer look at what types of information DHS is looking for in the Survey. The Facility’s completing the survey will be needing to download the Users Guide (UG) and the Questions Guide (QG) from the CSAT web site.

 NOTE: The word ‘Facility’ denotes the facility completing the survey; ‘facility’ denotes an agriculture facility served by the Facility.

Questions about Customers 

The first thing that is of interest here is that the questions in this survey are being asked about the customers of the facilities. Facilities are not being asked to identify specific customers by name or location or even the number of customers, but they are being asked to information to characterize their customers by their agriculture operations and their chemical use. Once a facility ascertains that they have customers covered by the survey {customers that use COI based chemicals in the preparation for, or application to, “treatment of crops, feed, land, livestock (including poultry) or other areas of an agricultural production facility” (QG, pg 3)} facilities are asked to identify the NAICS Codes that cover their customer’s facilities.

There is a list of NAICS Codes in the Survey, but it is not an exhaustive list. Surveyed facilities will respond ‘Yes’ to each of the listed Codes that apply to their customers’ facilities and then separately list any other NAICS Codes that apply to any of their covered customers. The QG notes that the NAICS Codes listed in the survey will link to a Census Bureau page that explains each of the codes. It would have been helpful to the Preparers of this Survey if the QG provided such links so that they could make the determination of how to complete this section before going on-line to complete the Survey. The next set of questions deal with how COI are provided to the Customer; whether they are picked-up by the Customer, delivered by the Facility or applied by the Facility (STA – sold, transferred or applied). Since these questions are not tied to any specific facility it is very possible that there could be a ‘Yes’ response to each of these separate questions. 

Finally, the Survey asks a series of questions about the COI related activities of the Customers’ facilities. They all start off with the phrase “(t)o the best of your knowledge” and then ask about the shipment or reselling of COI by the Customers. Also covered in this section are generic questions about the COI related security programs at the Customer locations. It is not clear how useful the information provided in this section will be to DHS. With only ‘Yes’, ‘No’, ‘Don’t Know’ responses available DHS will have no way of knowing how many facilities the responses apply to. Some of the Facilities completing this survey could have hundreds of covered customers. If even a single one of those customers was known to re-sell the COI-containing products the Facility would have to answer yes. Or, all of the Customers could be re-selling the COI-containing products; DHS will have no way of knowing.

Chemicals of Interest 

The bulk of the survey, as would be expected, deals with the various DHS Chemicals of Interest (COI) that might be included in products STA at Customer facilities. There are some interesting differences between the way the COI are handled in this Survey and the way they are handled in the Top Screen. The foremost difference is the fact that DHS wants information on COI based upon minimum concentration not Screening Threshold Quantity (STQ). Fuels are specifically exempted from Survey reporting.

DHS wants Facilities to respond to questions on all COI that are STA at agricultural facilities if the COI is in a concentration above the minimum concentration listed in Appendix A, 6 CFR Part 27. The questions should be answered regardless if the Facility has them at or above STQ levels. The Survey will be pre-populated with COI listed in the Facility’s latest Top Screen. The facility will then add any COI STA if it is above the minimum concentration. The Preparer will then identify (checking ‘Yes’ or ‘No’) if the COI is contained in a Fertilizer, Pesticide, or Other. Any given COI could be identified in multiple categories.

These terms are ‘defined’ as follows (UG, pg 13):
“● Pesticide, including active ingredients, fumigants, sterilants, and COI used in food preparation/preservation;“
● Fertilizer, including as a fertilizer ingredient; or“
● Other, for any other agricultural-related purpose.”
These definitions are not very well documented or explained. It seems to me that some Facilities will be expansive in their inclusion of products in these categories while others will be more restrictive. This could make the DHS analysis of this information complicated to say the least.

COI in Pesticides 

For each COI that a Facility identifies as being included in a ‘pesticide’, the Survey will provide a list of EPA approved pesticides containing that COI. The Facility will identify each the listed pesticides that it STA to/at agriculture facilities. If the pesticide is not listed there are provisions made for adding those pesticides to the list for the Facility. A series of questions will then be asked about each of the ‘pesticides’ included on the Facility’s list. Questions will address the concentration (weight %) of the COI in that pesticide as sold, transferred or applied by the Facility.

Other questions will address the type and size of the containers in which the pesticide is STA. Next a series of questions will address the customer facilities to which the pesticide is STA. The Preparer will identify each of the NAICS to which the pesticide is STA. The amount and frequency of the STA will be identified. Finally there will be a series of questions about the types of security programs currently in place for the identified pesticides. I question the utility of these security system based questions because they could apply to only one of many customers, a significant number of customers or all of the customers of a given facility.

The way the questions appear to be worded will not allow DHS to distinguish between the three categories. DHS will have to use extreme care when drawing conclusions from the answers to these questions.

COI in Fertilizers 

The only real difference between the fertilizer and pesticide questions is that there will be not pre-populated list of approved fertilizers containing the identified COI. The preparer will have to identify by commercial name each of the fertilizers STA that contain COI at or above the minimum concentration identified in Appendix A. The actual concentration of the listed fertilizer COI will then be listed for each fertilizer. The remainder of the questions in the Fertilizer Section of the Survey will be very similar to the pesticide questions.

COI in Other Products

The final section of the Survey deals with COI contained in ‘Other’ products STA at/to agriculture facilities. As with ‘fertilizers’ the product list will have to be entered by the facility. With these products the Preparer will also have to provide a brief description of what the product is used for. Once again the remaining questions will be essentially the same as those asked for ‘pesticides’.

General Observations

I understand that DHS has a politically difficult job in trying to justify applying the CFATS regulations to agriculture facilities. Agriculture is the single largest politically protected industry in the United States. While they like to assume the mantel of the ‘family farm’ run by simple ‘farmers’, the great majority of agri-business in the United States is BIG Business. The Agri-Lobby is well funded and politically connected.

While a large number of the agriculture facilities in this country are in the country and relatively isolated many are located in towns and cities scattered around the country. An argument could certainly be made that with isolated exceptions these facilities are not much in the way of being terrorist targets for release COI. Their very ‘isolation’ and general lack of security do, however, make them potential targets for the theft/diversion of chemicals.

The filing of Top Screens by these facilities would have eliminated the vast majority of these facilities from further regulation under CFATS. It would have been over and done with by now. Unfortunately DHS must now justify requiring these facilities to submit Top Screens in ways that were never required for other chemical facilities.

I’m not sure how DHS hopes to use the data from this Survey to provide that justification. The way that the data is requested in the Survey will leave any report from this Survey open to all sorts of questions and claims of inadequacy and lack of specificity. I suspect that this will only provide the Agri-Lobby with additional ammunition to claim special exemption from the CFATS regulations.

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